State v. Mora
| Decision Date | 20 May 2022 |
| Docket Number | 123,410 |
| Citation | 509 P.3d 1201 |
| Parties | STATE of Kansas, Appellee, v. Tanner Scott MORA, Appellant. |
| Court | Kansas Supreme Court |
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
A jury convicted Tanner Scott Mora of two alternative counts of felony murder after a man—from whom Mora and his codefendant, Ashantis Bledsoe, were attempting to purchase marijuana—was shot and killed by Bledsoe during a drug deal turned robbery gone wrong. Mora received a hard 25 sentence for the first felony-murder conviction (underlying felony of attempted aggravated robbery), and the district court held the second conviction (underlying distribution of marijuana) in abeyance. Mora directly appealed. Today we reverse both of Mora's convictions because we find that they are not supported by sufficient evidence.
Mora lived with a roommate, Felicia Cornman, who worked at a Wichita Burger King. Mora was unemployed and would sometimes accompany Cornman to her shifts to hang out and use the Wi-Fi. Cornman was dating her Burger King co-worker, Ashantis Bledsoe, and Mora had met Bledsoe on a few occasions when he would come with Cornman to work.
Mora accompanied Cornman to Burger King one night in February 2019, and Bledsoe showed up during her shift. The two men spoke to one another, then Mora approached Cornman and asked if they could borrow her car. Cornman agreed, not knowing where they planned to go. The men were only supposed to be gone for 20 minutes but did not return for close to 2 hours.
Meanwhile, that same night Lorenzo Wade—who police later determined was a distributer of marijuana—was at a friend's apartment near Genesis Health Clubs, and he began exchanging several phone calls and text messages with a number later traced to Mora's phone. Wade told his friend that he was going to meet someone at Genesis and would be "right back." The final texts showed that Wade said Mora's phone quickly responded, "we in parking lot waiting," then Wade replied
When Wade got into the backseat, Bledsoe pulled a gun, turned around, and demanded that Wade "give [him] the weed." Wade "kind of laughed about it," saying, "I'm not giving you that." Bledsoe then fired the gun at Wade. Wade's body fell out of the car, and Mora and Bledsoe sped away. When police arrived at the scene just a few minutes later, Wade was found dead on his back. His cell phone was in his coat pocket, and a clear plastic bag containing a green botanical substance was between his legs. No evidence of the amount of the substance was ever introduced at trial.
Two bullet fragments were recovered from Wade's body. The coroner identified 10 total entrance gunshot wounds
, with 7 on his back, and determined that Wade's cause of death was multiple gunshots to the trunk. A crime scene investigator later located two bullet fragments in Cornman's car and a fired casing under the rear seat.
Lead Detective Ryan Schomaker, after examining Wade's phone, concluded that the large number of calls and text messages indicated that Wade regularly sold drugs. Schomaker concluded that the communications showed that Mora, Bledsoe, and Wade were meeting up for a drug deal and that Wade was the distributer. Police were able to identify Mora as a suspect by investigating the phone number last used to text Wade. Twenty days after the shooting, police arrested Mora after pinning down his location based on data obtained from Tinder.
Cornman, in an interview with Detective Schomaker, said that Mora had told her he saw somebody get shot at Genesis and was considering turning himself in. She explained that Mora and Bledsoe When asked to clarify, Cornman explained that when Bledsoe told Wade to give them "free weed," Wade Mora told Cornman that Bledsoe was the shooter. Mora maintained that he did not realize that Bledsoe planned to rob Wade, as he thought that they were going to pay for the weed; but Bledsoe "was there to rob the guy." After the killing, Bledsoe warned Mora not to tell anyone.
The State charged Mora with two alternative counts of felony murder. Count one charged attempted aggravated robbery as the underlying felony and count two charged distribution of marijuana as the underlying felony. The jury convicted Mora on both counts. The district court entered judgment on both convictions, sentencing Mora to a hard 25 sentence on count one and holding count two in abeyance. Mora directly appeals.
Mora raises four allegations of error. First, he argues that the jury was given a legally inappropriate jury instruction, and this instruction, coupled with insufficient evidence of a specific intent to aid and abet the underlying attempted robbery, amounts to reversible error. Second, he asserts that there was insufficient evidence of the underlying felony of distribution of marijuana to support his second felony-murder conviction. Third, he claims that his right to present a defense was violated because the district court excluded admissible hearsay statements. Finally, Mora argues the district court should have merged his two convictions instead of holding one in abeyance.
A clearly erroneous jury instruction, coupled with insufficient evidence of the underlying felony, requires reversal of Mora's first felony-murder conviction.
Mora's first felony-murder conviction was based on the underlying felony of attempted aggravated robbery under an aiding and abetting theory of liability. Mora argues that a clearly erroneous instructional error, coupled with insufficient evidence of a specific intent to aid and abet the attempted robbery, warrants reversal of this conviction.
We address the instructional claim first because it bears directly on the reason the jury convicted Mora on what we then conclude was insufficient evidence. We first apply our familiar four-step analysis in reviewing an alleged instructional error:
We apply the clear error standard here because Mora did not raise this issue below. K.S.A. 2020 Supp. 22-3414.
Mora argues that the following instruction given to the jury is clearly erroneous:
This three-paragraph instruction is contained in PIK Crim. 4th 52.140. The notes to that PIK state that the middle paragraph "should not be used for a specific-intent crime for which defendant is charged on an aiding and abetting theory" based on State v. Overstreet , 288 Kan. 1, 200 P.3d 427 (2009). In Overstreet , we held that "for a defendant to be convicted of a specific-intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal." 288 Kan. at 13, 200 P.3d 427. Mora argues that because he was charged with attempted aggravated robbery under an aiding and abetting theory, the State was required to prove he had the specific intent to commit robbery, rendering the second paragraph requiring foreseeability clearly erroneous.
We exercise unlimited review over questions of statutory interpretation. State v. Scheuerman , 314 Kan. 583, 587, 502 P.3d 502 (2022). We likewise exercise unlimited review in determining whether a criminal statute requires general or specific intent. State v. Kershaw , 302 Kan. 772, 776, 359 P.3d 52 (2015). In construing the statutes, " ‘we begin with the plain language of the statute, giving common words their ordinary meaning.’ " Scheuerman , 314 Kan. at 587, 502 P.3d 502.
Our first step in evaluating whether a crime is one of general or specific intent is to examine whether the plain language of the statute defining the crime "identifies or requires a further particular intent which must accompany the prohibited acts." State v. Cantrell , 234 Kan. 426, Syl. ¶ 7, 673 P.2d 1147 (1983). The language of the aggravated robbery statute does not require a...
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