State v. Schreiner, No. 104,149.

CourtCourt of Appeals of Kansas
Writing for the CourtATCHESON, J.
Citation46 Kan.App.2d 778,264 P.3d 1033
Docket NumberNo. 104,149.
Decision Date04 November 2011
Parties STATE of Kansas, Appellee, v. Joshua H. SCHREINER, Appellant.

46 Kan.App.2d 778
264 P.3d 1033

STATE of Kansas, Appellee,
v.
Joshua H. SCHREINER, Appellant.

No. 104,149.

Court of Appeals of Kansas.

Nov. 4, 2011.


Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and McANANY, JJ.

ATCHESON, J.

This case requires the court to look at alternative means challenges Defendant Joshua H. Schreiner asserts to convictions for raping and sodomizing his teenage daughter. As to the

46 Kan.App.2d 780

rape conviction, Schreiner contends the statutory language criminalizing "penetration" of the female genitalia by "a finger, the male sex organ, or any object" creates alternative means of committing the offense. We disagree. As to the aggravated criminal sodomy conviction, we hold Schreiner's alternative means challenge to be barred on appeal as invited error because his trial counsel requested the jury instruction about which he now complains. Schreiner also says the prosecutor overstepped in closing argument creating reversible error and the trial judge improperly sentenced him. We reject those claims, as well, and affirm in all respects.

FACTUAL AND PROCEDURAL HISTORY

Given the issues Schreiner raises on appeal, we need not set forth at length the sordid details the Sedgwick County jury heard during the 4–day trial in October 2009. The criminal charges stem from incidents in 2005, but Schreiner's sexual abuse of his daughter A.S. began earlier. During most of the relevant time, A.S. lived with Schreiner, her stepmother, two younger siblings, a stepsibling, and a halfsibling. The evidence showed that on Halloween night 2003 Schreiner put his hands down A.S.'s pants while she was sleeping on a sofa in the living room of their home. At trial, A.S. described an incident in May 2005 when Schreiner had her perform oral sex on him while the act apparently was being recorded or broadcast through a computer and webcam in the room. A.S. testified to another incident in 2005 during which Schreiner forced her to undress, took off his own clothes, and then inserted his penis into her genitalia. In August 2005, after he had been drinking heavily

264 P.3d 1038

one night, a naked Schreiner went into A.S.'s bedroom and fondled her breasts. She immediately told her stepmother what had happened. A.S.'s stepmother went into the bedroom and discovered what she determined to be semen on the bed sheets. Shortly afterward, she and her children moved out of the house. Schreiner and his children moved in with his mother. After that, in November 2005, Schreiner again thrust his hands into A.S.'s pants and touched her buttocks.

About that time, A.S. told a friend at school about what had happened to her. The information was quickly passed along several times and prompted a State investigation at the end of 2005.

46 Kan.App.2d 781

At trial, Schreiner faced four charges: (1) one count of rape for the incident in which he penetrated A.S.'s genitalia, a violation of K.S.A. 21–3502(a)(1)(A) (Furse) ; (2) one count of aggravated sodomy when he forced her to fellate him in May 2005, a violation of K.S.A. 21–3506(a)(3)(A) (Furse) ; (3) one count of aggravated indecent liberties with a child for the August 2005 incident; and (4) one count of aggravated indecent liberties with a child for the November 2005 incident, both violations of K.S.A. 21–3504(a)(2)(A) (Furse). The jury found him guilty of each count. The district court imposed a controlling sentence of 343 months in prison on Schreiner by running the time on some of the convictions concurrently and some consecutively. The mechanics of fashioning that term of imprisonment do not figure in our review. Schreiner has timely appealed.

RAPE CONVICTION: NO ALTERNATIVE MEANS

Schreiner contends the rape conviction must be reversed because the offense may be committed by alternative means and the prosecution failed to present evidence supporting each of the means submitted to the jury. We first look at the concept of alternative means offenses as the Kansas Supreme Court has developed that body of law. We then apply the doctrine to the aspect of the rape statute Schreiner challenges. In making that analysis, this court considers the facts in the light most favorable to the State, as the party prevailing in the district court. An appellate court neither reweighs the evidence generally nor credits witness testimony contrary to the verdicts. See State v. Trautloff, 289 Kan. 793, 800–01, 217 P.3d 15 (2009) ; State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). Having accepted the facts in that manner, this court then applies alternative means principles to the language of the rape statute. The issue, thus presented, is one of law, affording this court unconstrained review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. For example, this court has held that aggravated robbery, as defined in K.S.A. 21–3427, is an alternative

46 Kan.App.2d 782

means crime because a person can commit the offense in either of two distinct ways: (1) by inflicting bodily harm on the victim while taking property from him or her; or (2) by taking the property while armed with a dangerous weapon. State v. Reed, 45 Kan.App.2d 372, 385, 247 P.3d 1074 (2011). Those reflect different factual circumstances. In one, the victim suffers a physical injury. In the other, the criminal has a handgun, a knife, or some other weapon but need not even touch the victim. (In some instances, of course, the facts would satisfy both means: the perpetrator stabs a man and then takes his wallet.) Other criminal statutes, however, establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. For example, criminal damage to property is defined in K.S.A. 21–3720(a)(1) as "intentionally injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property" of another person without permission. The essence of that offense is causing harm to someone else's property. The legislature simply chose half a dozen phrases to say so in drafting the statute. See State v. Simmons, No. 102,900, unpublished decision filed March 25, 2011, slip op. at 5–6, 2011 WL 1196908, rev. denied (293 Kan. –––– October 3, 2011) (Criminal damage to property is not an alternative means crime because the statutory terms reflect linguistic redundancy rather than different actions.).

264 P.3d 1039

When a statute establishes alternative means of committing a crime, the State must present evidence sufficient to support each means submitted to the jurors in the instructions. All of the jurors must be convinced beyond a reasonable doubt the defendant committed the offense. But the jurors need not agree on which of the alternative means has been proven. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). A general verdict of conviction is legally proper so long as the record contains sufficient evidence to support each means. See Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159; State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007). Should evidence be lacking on one of the means, however, then a guilty verdict fails for insufficient evidence even though there may be overwhelming evidence supporting the other means. See Wright, 290 Kan. at 204–06, 224 P.3d 1159. A verdict without sufficient evidence requires an appellate

46 Kan.App.2d 783

court to reverse the conviction and enter a judgment of acquittal. See Tibbs v. Florida, 457 U.S. 31, 40–41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ; State v. Hollins, 9 Kan.App.2d 487, 489–90, 681 P.2d 687 (1984).

As provided in K.S.A. 21–3502, rape includes "sexual intercourse with a person who does not consent" because that person has been "overcome by force or fear." That was the charge against Schreiner. In turn, "sexual intercourse" is defined in K.S.A. 21–3501(1) as "any penetration of the female sex organ by a finger, the male sex organ or any object." The criminal offense, then, is the act of penetrating the female sex organ without the victim's consent. In this case, the jury instructions conformed to language of the rape statute and included the definition of sexual intercourse.

Schreiner argues that taken together the two statutes create alternative means of committing the crime of rape. That is, he says one means is penetration by a finger, another means is penetration by a penis, and a third means is penetration by any object. He then argues there was insufficient evidence to convict him because the State did not prove he used his finger or an object to violate his daughter. There was no evidence to that effect because that's not what happened.

But Schreiner parses the statutes too finely. The statutes actually define a single means of committing rape;...

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62 practice notes
  • State v. Brown, No. 119,790
    • United States
    • Court of Appeals of Kansas
    • March 12, 2021
    ...intoxication defense was equivalent to an excuse to harm someone. This is clearly a misstatement of the law. Cf. State v. Schreiner , 46 Kan. App. 2d 778, 795-96, 264 P.3d 1033 (2011) (holding that the prosecutor's request to the jury to "find that intoxication is not an excuse for the beha......
  • Mashaney v. Bd. of Indigents' Def. Servs., No. 108,353.
    • United States
    • Court of Appeals of Kansas
    • November 8, 2013
    ...excuse, a value judgment that in those circumstances a person should not be punished for criminal conduct. See State v. Schreiner, 46 Kan.App.2d 778, 796, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (2013). A criminal defense lawyer's failure to raise or adequately present a valid compu......
  • State v. Hargrove, No. 105,415.
    • United States
    • Court of Appeals of Kansas
    • February 1, 2013
    ...they complain on appeal about the instructional error. See State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011); State v. Schreiner, 46 Kan.App.2d 778, 788–89, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011; State v. McCoy, 34 Kan.App.2d 185, 189–90, 116 P.3d 48 (citing ca......
  • State v. Dern, No. 106,406.
    • United States
    • United States State Supreme Court of Kansas
    • November 25, 2015
    ...error. The panel agreed and declined to reverse the two sodomy convictions under the invited error doctrine, citing State v. Schreiner, 46 Kan.App.2d 778, 264 P.3d 1033 (2011). Dern, 2013 WL 2395253, at *10. In Schreiner, the defendant similarly argued there was insufficient evidence to sup......
  • Request a trial to view additional results
62 cases
  • State v. Brown, No. 119,790
    • United States
    • Court of Appeals of Kansas
    • March 12, 2021
    ...intoxication defense was equivalent to an excuse to harm someone. This is clearly a misstatement of the law. Cf. State v. Schreiner , 46 Kan. App. 2d 778, 795-96, 264 P.3d 1033 (2011) (holding that the prosecutor's request to the jury to "find that intoxication is not an excuse for the beha......
  • Mashaney v. Bd. of Indigents' Def. Servs., No. 108,353.
    • United States
    • Court of Appeals of Kansas
    • November 8, 2013
    ...excuse, a value judgment that in those circumstances a person should not be punished for criminal conduct. See State v. Schreiner, 46 Kan.App.2d 778, 796, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (2013). A criminal defense lawyer's failure to raise or adequately present a valid compu......
  • State v. Hargrove, No. 105,415.
    • United States
    • Court of Appeals of Kansas
    • February 1, 2013
    ...they complain on appeal about the instructional error. See State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011); State v. Schreiner, 46 Kan.App.2d 778, 788–89, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011; State v. McCoy, 34 Kan.App.2d 185, 189–90, 116 P.3d 48 (citing ca......
  • State v. Dern, No. 106,406.
    • United States
    • United States State Supreme Court of Kansas
    • November 25, 2015
    ...error. The panel agreed and declined to reverse the two sodomy convictions under the invited error doctrine, citing State v. Schreiner, 46 Kan.App.2d 778, 264 P.3d 1033 (2011). Dern, 2013 WL 2395253, at *10. In Schreiner, the defendant similarly argued there was insufficient evidence to sup......
  • Request a trial to view additional results

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