State v. Shaw, 106,015.

• Decision Date: 20 July 2012
• Docket Number: No. 106,015.,106,015.
• Citation: 281 P.3d 576,47 Kan.App.2d 994
• Parties: STATE of Kansas, Appellee, v. Roger SHAW, Appellant.
• Court: Kansas Court of Appeals

47 Kan.App.2d 994
281 P.3d 576

STATE of Kansas, Appellee,
v.
Roger SHAW, Appellant.

No. 106,015.

Court of Appeals of Kansas.

July 20, 2012.

[281 P.3d 577]

[47 Kan.App.2d 994]Syllabus by the Court

1. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to the 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.

2. Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. Such statutes do not create alternative means.

3. Under the plain language of K.S.A. 21–3442, there are three alternative means to commit the crime of involuntary manslaughter while driving under the influence of alcohol: the unintentional killing of a human being committed in the (1) commission of, (2) attempt to commit, or (3) flight from an act described in K.S.A. 8–1567 and amendments thereto.

4. Under the facts of this case, the district court instructed the jury on multiple alternative means of committing involuntary manslaughter while driving under the influence of alcohol, and the State presented insufficient evidence at trial to prove each alternative means.

5. When there is insufficient evidence at trial to support the defendant's conviction of each alternative means of committing a crime, the proper remedy is to reverse the defendant's conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial.

[281 P.3d 578]

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

Heather R. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.

PER CURIAM.

[47 Kan.App.2d 995]Roger Shaw appeals his conviction of involuntary manslaughter while driving under the influence of alcohol. For the first time on appeal, Shaw argues that we must reverse his conviction because the district court instructed the jury on multiple alternative means of committing the crime and the State failed to present sufficient evidence of each alternative means. In addition, Shaw contends that the district court violated his constitutional rights by sentencing him based in part on his criminal history without first requiring that the criminal history be alleged in the complaint and proven beyond a reasonable doubt to a jury. We agree with Shaw that involuntary manslaughter while driving under the influence of alcohol is an alternative means crime. We also agree with Shaw that the State failed to present substantial evidence of at least one of the alternative means of committing the crime. Accordingly, we reverse Shaw's conviction and remand for a new trial.

The tragic events of this case unfolded on a Sunday afternoon, July 19, 2009. Adam and Aaron Kichler were brothers and spent a lot of time together, often riding their motorcycles. At approximately 2:45 p.m., Adam and Aaron left their parents' home in Ottawa to ride their motorcycles to Wellsville and then on to Kansas City to see a movie. Adam later testified that they were not in a hurry and they did not exceed the speed limit on the county road, which was 55 miles per hour. The two young men rode staggered; Aaron rode in front near the center line, and Adam rode approximately 12 to 15 feet behind him near the fog line by the shoulder of the road. The brothers drove eastbound on Shawnee Road toward Wellsville.

Meanwhile, Roger Shaw and Dennis Ameigh were traveling back to Shaw's house from a trip to buy car parts; Shaw was driving his truck westbound on Shawnee Road. Adam testified that when [47 Kan.App.2d 996]he and Aaron were a quarter mile from the intersection of Shawnee Road and Texas Road, he saw a red truck coming in the opposite lane; the truck had slowed down to a “slow roll.” Adam testified that as they came upon the truck, he “saw the front end of the truck lift up,” meaning that the driver was sharply accelerating and beginning to turn left in front of the approaching motorcycles. Adam testified that he saw the truck's wheels turn and he heard Aaron yell. Aaron's motorcycle hit the truck. Adam locked his brakes and turned to the left, avoiding the truck by an inch or two.

Shanta Kemp, who lived nearby, was driving home, saw the aftermath of the collision, stopped, and called 911. During her 911 call, Kemp informed the dispatcher that she could smell alcohol on Shaw's breath. Emergency services personnel were dispatched to the scene and pronounced Aaron dead at the scene.

Joanna Buchorn, an emergency medical technician who treated Shaw at the scene, later testified that Shaw told her that he had consumed “a couple of beers” prior to the accident and repeatedly told her that he had not seen the motorcycles. Kyle Lasswell, who was employed by the Wellsville Police Department and had been dispatched to the collision, later testified that he and Adam saw an empty beer box on the ground by Shaw's truck. Franklin County Sheriff's Deputy Carl Bentley testified that when he talked with Shaw at the scene, he smelled a faint odor of alcohol coming from Shaw and that Shaw admitted to drinking three beers that day. According to Bentley, Shaw told him that the sun was in his eyes as he made the left turn from Shawnee Road onto Texas Road and he could not see the motorcycles. At the request of law enforcement, Buchorn obtained a blood sample from Shaw at 3:42 p.m. The blood sample tested at a .11 blood alcohol level, above the legal limit of .08.

On November 19, 2009, the State charged Shaw with involuntary manslaughter while driving under the influence of alcohol or

[281 P.3d 579]

drugs, in violation of K.S.A. 21–3442. The jury trial occurred October 4–8, 2010. The main point of contention at trial was the identification of the direct cause of the collision and, therefore, Aaron's death. The State argued that Shaw's intoxication was the cause of the collision, while Shaw contended that Aaron had been speeding. [47 Kan.App.2d 997]The State presented testimony from Emily Wood, the 911 dispatcher who received Kemp's call, which included the information that Kemp could smell alcohol on Shaw's breath. Kemp also testified for the State. In addition to stating that she smelled alcohol on Shaw's breath, Kemp testified that when she had seen the motorcycles drive by a few minutes prior to the collision, she did not believe they were speeding. Buchorn also testified about Shaw's admission that he had consumed “a couple of beers” prior to the accident. Adam Kichler testified as to the events of the day and specifically stated that neither he nor Aaron was speeding.

The State also offered testimony from law enforcement officials including Lasswell, Bentley, and Franklin County Sheriff's Deputy Brian Ferguson, who photographed the scene and took measurements. Franklin County Sheriff Jeffrey Curry, who at the time of the collision was a patrol sergeant, also testified for the State. Curry had conducted a speed analysis on Adam's motorcycle primarily by considering the length and direction of the skid marks. Curry determined that Adam was going 41–47 miles per hour at the point he locked up his rear brake. Because Adam and Aaron were traveling together, Curry stated it was reasonable to assume they were going the same speed and he had no reason to believe Aaron was driving faster than the posted speed limit of 55 miles per hour. In addition, each law enforcement officer testified that, at mid-afternoon on the day in question, the sun did not detrimentally affect his vision while driving to the scene of the collision.

The State also called Dr. Christopher Long, who had analyzed bodily fluids taken from Aaron and testified that the tests showed that sometime in the 20 hours prior to the accident, Aaron had taken hydrocodone and Tylenol, but that the levels present would not have caused impairment. Dr. Joel Kavan, a family physician, testified that he had treated Aaron on July 8, 2009, and prescribed hydrocodone and an anti-nausea medication for Aaron's back pain.

Next, the State presented the testimony of Andy Buck, a senior field claims adjuster for Farm Bureau Life Insurance Services assigned to investigate the collision. Buck interviewed Shaw as part of his investigation. Buck testified that Shaw told him that he had consumed two and one-half beers over a 3–hour period on July 19, [47 Kan.App.2d 998]2009. Shaw told Buck that prior to the collision, he had seen the motorcycles traveling toward him but after he began his turn, he looked up and the motorcycles were “right there.” Shaw told Buck that he believed the motorcyclists were racing and that Aaron could have avoided hitting his truck.

Dr. Erik Mitchell, the forensic pathologist who performed the autopsy on Aaron, testified about Aaron's extensive injuries, both internal and external, and that the injuries were consistent with direct impact with a vehicle. Jennifer Agee, a forensic toxicologist with the Kansas Bureau of Investigation, testified that she had analyzed Shaw's blood sample and found .11 grams of ethyl alcohol per 100 milliliters of blood, which is above the legal limit in Kansas of .08.

Finally, the State presented the testimony of Robert McKinzie, an accident reconstruction specialist, who had performed a reconstruction of the collision. McKinzie based his analysis on an examination of the sheriff's department file, photographs of the crash site, a visit to the crash site, information from witnesses, and a transcript. In McKinzie's opinion, the sun...