State v. Kittman

• Decision Date: 29 March 2013
• Docket Number: No. 107,519.,107,519.
• Citation: 297 P.3d 1194
• Parties: STATE of Kansas, Appellee, v. Kelly KITTMAN, Appellant.
• Court: Kansas Court of Appeals

297 P.3d 1194

STATE of Kansas, Appellee,

v.Kelly KITTMAN, Appellant.

No. 107,519.

Court of Appeals of Kansas.

March 29, 2013.

Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BRUNS and POWELL, J.J.

MEMORANDUM OPINION

POWELL, J.

A jury convicted Kelly Kittman of cultivation of marijuana, possession of drug paraphernalia, and possession of marijuana. On appeal, she argues two points of error.

First, Kittman contends instructing the jury on aiding and abetting created alternative means of committing the crimes and, because the State failed to present sufficient evidence she acted as both the principal and as an aider and abettor, her convictions must be reversed. Second, Kittman contends the journal entry of sentencing incorrectly states she was sentenced to 16 months in prison when a 15–month sentence was pronounced from the bench.

Because we believe the aiding and abetting instruction does not constitute alternative means of committing a crime, we affirm Kittman's convictions, but we remand the case to the district court for correction of the journal entry as it improperly reflects a controlling sentence of 16 months when the district court pronounced a 15–month sentence from the bench.

Facts

Wichita police officer Robert Thatcher and his partner, Detective Jason Barrel, responded to a drug complaint concerning the residence of Kittman. Kittman invited the officers into the residence and consented to a search of her home.

In Kittman's bedroom, Officer Thatcher found a marijuana pipe. In the bathroom, he found baggies, marijuana residue, another marijuana pipe, marijuana seeds, several planting pots, and a High Times magazine, described as a magazine containing information on marijuana cultivation. In Kittman's back yard, Officer Thatcher discovered seven potted marijuana plants lined up in a row and several small marijuana plants nestled in a strawberry patch. Although Kittman claimed she was unaware of the marijuana plants in her yard, she stated she took care of the yard; she had a green thumb; and she was in the garden on a daily basis.

Kittman admitted the various drug-related items found in her bedroom and bathroom belonged to her. She could not recall to whom the marijuana, marijuana seeds, and rolling machine that were found inside a coffee table in the living room belonged. Kittman explained that she and her son both used marijuana and would share their supply. At the time, Kittman's adult son, Keil Culver, lived with her. In Culver's bedroom, Officer Thatcher found a poster of a marijuana plant, a High Times magazine, a High Times Ultimate Grow calendar, a metal grinder for marijuana, and a water pipe or bong.

A jury convicted Kittman as charged. The sentencing court imposed a 15–month prison term for the primary crime of cultivation of marijuana and ordered the sentences for the two remaining counts to run concurrent to that sentence. Kittman was placed on probation.

Kittman timely appeals.

Does K.S.A. 21–3205, Imposing Criminal Liability for Accomplices, Create Alternative Means of Committing the Charged Crime?

Relying on State v. Boyd, 46 Kan.App.2d 945, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; cross-petition for review filed February 6, 2012, Kittman claims, instructing the jury it could convict her on all counts if she aided and abetted another to commit the crimes created alternative means of committing the crimes. Because the State presented insufficient evidence she aided and abetted another to commit the crimes, Kittman maintains her right to a unanimous jury verdict was violated and the panel must reverse her convictions. The State, noting that another panel of this court has disagreed with the holding in Boyd, argues the aiding and abetting instruction did not create alternative means of committing the crimes charged.

The trial court in Kittman's case instructed the jury on aiding and abetting which provided:

“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”

The instruction was not tied to any specific offense, and the trial court separately instructed the jury on the elements of cultivation of a controlled substance, possession with the intent to use drug paraphernalia to cultivate a controlled substance, and possession of marijuana.

Alternative Means Rule and Standard of Review

The Kansas Supreme Court established the alternative means rule with its super-sufficiency requirement, which states:

“ “[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.]” “ State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash.2d 403, 410, 756 P.2d 105 [1988] ).

The Supreme Court later reaffirmed that substantial evidence must support each alternative means; the Timley alternative means rule and super-sufficiency requirement is the “only choice to ensure a criminal defendant's statutory entitlement to jury unanimity.” State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010).

The question of whether a statute provides two or more ways of committing the crime implicates statutory interpretation and thus presents an issue of law subject to de novo review. The most fundamental rule of statutory construction is that the intent of the legislature, as expressed through the statutory language, controls. State v. Stafford, 296 Kan. ––––, Syl. ¶ 13, 290 P.3d 562 (2012); State v. Brown, 295 Kan. 181, 188, 193–94, 284 P.3d 977 (2012).

In Brown, the Supreme Court established the following guidelines for determining whether the legislature intended to establish an alternative means of committing a crime.

“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. at 199–200, 284 P.3d 977.

Analysis

At the time Kittman filed her brief, a panel of this court held aiding and abetting liability provided alternative means of committing the principal crime. See Boyd, 46 Kan.App.2d 945, Syl. ¶ 5, 268 P.3d 1210. Now, as the State notes, there is a conflict between panels as to whether instructing the jury on aiding and abetting under K.S.A. 21–3205 creates alternative means of committing the charged crime. Both sides present convincing reasoning for their positions, but applying the Brown guidelines leads to a conclusion that K.S.A. 21–3205 does not create alternative means of committing the underlying crime.

In Boyd, the panel started from the premise that alternative means are derived from materially different ways of committing a crime. In considering aiding and abetting liability, the Boyd panel rephrased this premise more broadly as “markedly...