State v. Llamas, No. 104,827.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by LUCKERT
Citation298 Kan. 246,311 P.3d 399
PartiesSTATE of Kansas, Appellee, v. Samuel D. LLAMAS, Appellant.
Docket NumberNo. 104,827.
Decision Date25 October 2013

298 Kan. 246
311 P.3d 399

STATE of Kansas, Appellee,
v.
Samuel D. LLAMAS, Appellant.

No. 104,827.

Supreme Court of Kansas.

Oct. 25, 2013.


[311 P.3d 401]



Syllabus by the Court

1. On appeal from an order denying a motion for acquittal, an appellate court considers all the evidence in the light most favorable to the prosecution and determines if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In doing so, an appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.

2. Mere association with the principals who actually commit a crime or mere presence in the vicinity of a crime is insufficient to establish guilt as an aider and abettor. Rather, to be guilty of aiding and abetting in the commission of a crime, a defendant must willfully and knowingly associate with an unlawful venture and willfully participate in it as the defendant would in something he or she wishes to bring about or to make succeed. This intent can be established by circumstantial evidence.

3. Under the facts of this case, the evidence was sufficient to support a conviction for criminal discharge of a firearm at an occupied vehicle and for felony murder based on the underlying felony of criminal discharge of a firearm at an occupied vehicle because there was evidence that the defendant

[311 P.3d 402]

aided and abetted the crimes by either intentionally blocking the victim's escape or driving a vehicle with the intent to transport the shooter from the crime scene.

4. Under the facts of this case, the trial court did not err by refusing to add additional language to the aiding and abetting jury instruction that would have informed the jury that mere association with the principals who actually commit a crime or mere presence in the vicinity of a crime is insufficient to establish guilt on an aiding and abetting theory. Nevertheless, the better practice would be to include such language when a defense is based on the theory that a defendant was merely present and did not actively aid and abet a crime because the additional language explains the legal concepts in commonly understood words.

5. Generally, if a witness in a jury trial is an accomplice, the better practice is for the trial court to give a cautionary instruction. If the instruction is requested and is not given, the result may be error.

6. If a party incidentally argues that a constitutional harmless error standard applies but does not specify the constitutional right at issue, the argument is deemed abandoned and an appellate court will apply the nonconstitutional harmless error standard. Under that standard, the error is reversible only if the appellate court determines there is a reasonable probability that the error affected the outcome of the trial in light of the entire record.


Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of the same office, was on the brief for appellant.

Sarah E. Washburn, assistant county attorney, argued the cause, and Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by LUCKERT, J.:

A jury convicted Samuel D. Llamas of one count of felony murder, in violation of K.S.A. 21–3401(b), and one count of criminal discharge of a firearm at an occupied vehicle, in violation of K.S.A. 21–4219(b). The State's theory was that Llamas aided and abetted Michael Ismael Navarro, who actually discharged the firearm and killed Omar Flores. On appeal, Llamas argues he was merely present at the time of the shooting and did nothing to aid and abet Navarro's discharge of a firearm into the vehicle occupied by Flores. He raises three legal issues related to this factual contention: (1) The evidence against him was insufficient; (2) the trial court erred by failing to explain to the jury that mere association with a principal who commits a crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor; and (3) the trial court should have instructed the jury to view with caution the testimony of Navarro's girlfriend, who Llamas asserts was Navarro's accomplice and whose testimony he believes was prejudicial to his defense.

We hold: (1) The evidence was sufficient to support the jury's verdict because there was evidence that Llamas took an active role in the commission of the crimes and intended to aid and abet Navarro; (2) the trial court did not err in failing to add Llamas' proposed “mere association or presence” language to the aiding and abetting jury instruction, although the better practice would have been to add the language; and (3) any error in failing to instruct the jury to consider the testimony of Navarro's girlfriend with caution because she was an accomplice was harmless. Consequently, we affirm.

Facts and Procedural Background

During the summer of 2009, Navarro and Flores agreed to deal methamphetamine. Flores provided Navarro a train ticket to California, where Navarro was to purchase drugs. Navarro partially paid for the drugs with money supplied by his girlfriend Ruby Camarena. Navarro's California source fronted the remaining amount. Navarro returned to Kansas and delivered the methamphetamine to Flores on July 4, 2009. Flores agreed to pay Navarro when he sold the drugs and also promised that another individual,

[311 P.3d 403]

Matthew Miller, would pay for the drugs if Flores was unable to do so.

In the days following the July 4 transaction, Flores did not pay Navarro. The California source began calling about the “fronted” money Navarro still owed for the drugs, and Navarro became increasingly angry at Flores. Navarro repeatedly called Flores' cell phone, but Flores did not answer. It was “like he disappeared.” Navarro believed Flores was avoiding him, so he told his friends, including Llamas, to notify him if they saw Flores because he had “unfinished business” with Flores. During this time, Navarro would “hang out” almost daily with a group of friends that frequently included Llamas and Navarro's girlfriend's brother, Michael Camarena. (Michael and Ruby Camarena will be referred to by their first names to avoid confusion.) Navarro repeatedly told these friends that “something was going to happen to Mr. Flores if he did not give him the money.”

At one point, Ruby, who lived with Navarro in Emporia and frequently served as Navarro's translator, went with Navarro to see Miller in an attempt to collect the money from him. Miller refused to pay.

Sometime later, Navarro received word from Michael that Flores was near a restaurant in Emporia where Michael and his friend Joseph Meyers were eating. Navarro, Llamas, and Llamas' cousin drove to the restaurant. Navarro got out of the car and confronted Flores, who was sitting in his white Suburban. Llamas and his cousin remained in the car, and Michael and others gathered nearby. When Navarro rejoined his friends, he reported that he had given Flores “additional time to come up with the money” but had told Flores that he “better pay” or “he would mess him up.”

When Flores still did not pay, Navarro asked Llamas to impersonate the California drug source and call Miller. The purpose of the call was to intimidate Miller into finding Flores and “letting him know how he felt and what the situation was.” According to Miller, the person on the phone identified himself as “Joe.” He asked for Flores' location and said Flores owed him money. The caller's tone was “convincing” and “firm,” and he told Miller that “he was going to get his money one way or another.” Miller subsequently told Flores about the phone call.

Navarro also continued to look for Flores. Llamas and Navarro's other friends—basically whoever was “hanging out at the time”—frequently accompanied Navarro as he would drive around Emporia looking for Flores. As time passed, Navarro became increasingly agitated and told his friends, including Llamas, he was going to kill Flores. Despite these statements, Michael and Meyers testified they did not believe Navarro would kill Flores but thought “at the worst [Flores] was going to get beat up.”

On September 8, 2009, Meyers called Ruby on her cell phone. Because Navarro did not have his own cell phone, Meyers asked Ruby to tell Navarro that Flores had been seen in Emporia. Meyers also gave her specifics about Flores' location. Ruby relayed the information to Navarro, who went into the garage where, according to Ruby, he kept a couple of rifles, referred to as “long guns” or “long rifles.” Michael, who disposed of one of the rifles in a local river after Flores' death, described the rifle to the jury as a semi-automatic .22 caliber “long rifle” with a wood stock and steel barrel that was “as long as my arm spread.” Navarro left his house, driving a silver Honda Civic.

Navarro picked up Llamas and drove toward the location where Flores had been seen. Navarro spotted Flores' white Suburban, which he followed to a motel. Descriptions of what transpired at that point were given to the jury through the testimony of Michael, who was told about the incident by Llamas; the motel owner, who observed some of the incident; and law enforcement officers, who told the jury about statements made to them by Llamas and the motel owner.

Michael testified that Llamas told him Navarro got out of the car with the rifle. In response to a question by the prosecutor, Michael agreed that Llamas “was well aware that there was a rifle” in the Honda. Navarro confronted Flores, who stepped toward Navarro while grabbing for the rifle. Navarro shot Flores from the side and “then started

[311 P.3d 404]

unleashing on him.” Llamas told Michael, “[I]t was like a movie or it was like—it was unreal.... [Llamas] didn't really believe it was happening.” Llamas told Michael that after the shooting “Llamas did not get back in the vehicle with...

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70 practice notes
  • State v. Todd, No. 106,021.
    • United States
    • United States State Supreme Court of Kansas
    • April 25, 2014
    ...appropriate when an accomplice witness testifies, provided the accomplice is not also a codefendant in the trial. See State v. Llamas, 298 Kan. 246, 262–63, 311 P.3d 399 (2013) (requested accomplice testimony cautionary instruction legally appropriate); State v. Tapia, 295 Kan. 978, 996, 28......
  • State v. Williams, No. 108,586.
    • United States
    • United States State Supreme Court of Kansas
    • July 3, 2014
    ...the requested language in cases such as this, and failure to do so may imperil convictions in future similar cases. See State v. Llamas, 298 Kan. 246, 258–62, 311 P.3d 399 (2013).” Hilt, 299 Kan. at 185–86, 322 P.3d 367. Williams is in the same position as Hilt. It would have been the bette......
  • State v. Williams, No. 103,785.
    • United States
    • United States State Supreme Court of Kansas
    • May 23, 2014
    ...the others to and from the crime scene, and providing a gun was evidence of aiding and abetting the murder. See State v. Llamas, 298 Kan. 246, 254–58, 311 P.3d 399 (2013) (evidence sufficient [324 P.3d 1097]to establish aiding and abetting theory where defendant purposefully moved from the ......
  • State v. Potts, No. 113,302
    • United States
    • United States State Supreme Court of Kansas
    • June 24, 2016
    ...the other to commit the crime or intentionally aids the other in committing the conduct constituting the crime.”).In State v. Llamas , 298 Kan. 246, 311 P.3d 399 (2013), this court reviewed an aiding and abetting instruction based on PIK Crim. 3d 54.05—the predecessor to PIK Crim. 4th 52.14......
  • Request a trial to view additional results
70 cases
  • State v. Todd, No. 106,021.
    • United States
    • United States State Supreme Court of Kansas
    • April 25, 2014
    ...appropriate when an accomplice witness testifies, provided the accomplice is not also a codefendant in the trial. See State v. Llamas, 298 Kan. 246, 262–63, 311 P.3d 399 (2013) (requested accomplice testimony cautionary instruction legally appropriate); State v. Tapia, 295 Kan. 978, 996, 28......
  • State v. Williams, No. 108,586.
    • United States
    • United States State Supreme Court of Kansas
    • July 3, 2014
    ...the requested language in cases such as this, and failure to do so may imperil convictions in future similar cases. See State v. Llamas, 298 Kan. 246, 258–62, 311 P.3d 399 (2013).” Hilt, 299 Kan. at 185–86, 322 P.3d 367. Williams is in the same position as Hilt. It would have been the bette......
  • State v. Williams, No. 103,785.
    • United States
    • United States State Supreme Court of Kansas
    • May 23, 2014
    ...the others to and from the crime scene, and providing a gun was evidence of aiding and abetting the murder. See State v. Llamas, 298 Kan. 246, 254–58, 311 P.3d 399 (2013) (evidence sufficient [324 P.3d 1097]to establish aiding and abetting theory where defendant purposefully moved from the ......
  • State v. Potts, No. 113,302
    • United States
    • United States State Supreme Court of Kansas
    • June 24, 2016
    ...the other to commit the crime or intentionally aids the other in committing the conduct constituting the crime.”).In State v. Llamas , 298 Kan. 246, 311 P.3d 399 (2013), this court reviewed an aiding and abetting instruction based on PIK Crim. 3d 54.05—the predecessor to PIK Crim. 4th 52.14......
  • Request a trial to view additional results

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