State v. Snover

• Decision Date: 09 November 2012
• Docket Number: No. 105,917.,105,917.
• Citation: 287 P.3d 943
• Parties: STATE of Kansas, Appellee, v. Robert E. SNOVER, Appellant.
• Court: Kansas Court of Appeals

287 P.3d 943

STATE of Kansas, Appellee,

v.Robert E. SNOVER, Appellant.

No. 105,917.

Court of Appeals of Kansas.

Nov. 9, 2012.

Syllabus by the Court

1.Because the aiding and abetting statute, K.S.A. 21–3205(1), does not create an alternative means for committing criminal damage to property, the jury instruction on aiding and abetting in this case did not deprive the defendant of his right to jury unanimity.

2.Because the Kansas Legislature under K.S.A. 2010 Supp. 21–3110(13) has defined “obtains control” and “exerts control” to mean the same thing, the jury instruction in this case, which contained these terms, did not deprive the defendant of his right to jury unanimity since the State presented no alternative means of committing the crime.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

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

Before GREEN, P.J., BUSER and LEBEN, JJ.

GREEN, J.

Robert E. Snover appeals from his jury trial convictions of nonresidential burglary, theft, and criminal damage to property.On appeal, Snover makes the following arguments: (1) that the State failed to present sufficient evidence on each alternative means to support a unanimous jury decision for his criminal damage to property conviction; (2) that the State failed to present sufficient evidence on each alternative means to support a unanimous jury decision for his theft conviction; (3) that the trial court erred in instructing the jury that it could consider the “degree of certainty” demonstrated by the witness at the time she identified him; and (4) that the trial court unconstitutionally used his criminal history to increase his sentence without proving it to a jury.We disagree with Snover's arguments.Accordingly, we affirm the judgment of the trial court.

On the night of January 29, 2010, and in the early morning hours of January 30, 2010, Snover, Joshua Slocum, and Doran Wormell drove to Pome on the Range, an orchard in Franklin County, Kansas.Once Slocum, Snover, and Wormell arrived at the orchard, they drove to a shed on the property.Because the shed was locked with a padlock, Slocum returned to his truck to retrieve a pair of bolt cutters.Once the three men were inside the shed, they took some items, placed them in Slocum's truck, and left.

Slocum, Snover, and Wormell took the items to Ottawa, Kansas, where they cleaned and refurbished them.Next, the three men went to Wormell's ex-girlfriend's residence to pick up a different vehicle.The men planned to use the vehicle to take some of the items to Quenemo, Kansas, to sell.On the way to Quenemo, the vehicle the three men were using broke down.Slocum then called his friend Desiree Blanton to pick them up.Once Blanton arrived, Wormell and Slocum left with Blanton while Snover stayed behind so he could try to fix the vehicle.

Later, the men's plan was discovered by law enforcement and Snover was arrested and charged with nonresidential burglary, theft, and criminal damage to property.At trial, Blanton testified that she recognized Snover as one of the men at the vehicle where she picked up Wormell and Slocum.

The jury found Snover guilty of nonresidential burglary, theft, and criminal damage to property.Snover received a controlling prison sentence of 29 months with 12 months of postrelease supervision.

Did the Aiding and Abetting Instruction Given by the Trial Court Create an Alternative Means for Committing the Crime of Criminal Damage to Property?

Snover first argues that his conviction for criminal damage to property must be reversed because the aiding and abetting instruction given at trial created alternative means, and the State had failed to present sufficient evidence that he acted as a principal.In particular, Snover maintains that “the State presented absolutely no evidence to suggest that Mr. Snover intentionally ... damaged, destroyed, or substantially impaired the use of the padlock himself.”

Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense.In an alternative means case, the State is not required to elect one means or another when presenting its case to the jury or when requesting jury instructions.State v. Stevens,285 Kan. 307, 309, 172 P.3d 570(2007).Nevertheless, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged.Wright,290 Kan. at 202, 224 P.3d 1159.This safeguard prevents a jury, partially or wholly, from reaching a finding of guilt based on insufficient evidence.As a matter of law, when the State provides inadequate evidence for a reasonable factfinder to reach guilt through a certain means, a conviction must be reversed.Wright,290 Kan. at 203, 224 P.3d 1159.

Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.Wright,290 Kan. at 202, 224 P.3d 1159(quotingState v. Timley,255 Kan. 286, 289, 875 P.2d 242[1994] ).In reviewing an alternative means case, the court must determine if a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.Wright,290 Kan. at 202, 224 P.3d 1159.

In a challenge to the sufficiency of the evidence, we are guided by the following standard of review:

“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”State v. McCaslin,291 Kan. 697, 710, 245 P.3d 1030(2011).

Moreover, in determining if there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses.State v. Trautloff,289 Kan. 793, 800, 217 P.3d 15(2009).A guilty verdict will be reversed only in the rare case where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt.State v. Matlock,233 Kan. 1, 5–6, 660 P.2d 945(1983).

The State's complaint/information charged Snover as follows:

“That on, about, or between 30th day of January, 2010 and the 31st day of January, 2010, in the County of Franklin, State of Kansas, ROBERT E. SNOVER did then and there unlawfully and intentionally by means other than fire or explosive, injure, damage, mutilate, deface, destroy, or substantially impair the use of property, to-wit: padlocks to the extent of less than $1,000.00, in which another person had an interest, to-wit: Mike Gerhardt(a.k.a. Leland Gerhardt), without the consent of such person or business, a class B non-person misdemeanor, in violation of K.S.A. 21–3720(a)(1)andK.S.A. 21–4502(1)(b).”

Accepting the earlier stated alternative means concepts, we first must determine if this case truly presents an alternative means issue.If the statute that penalizes criminal damage to property—K.S.A. 21–3720—does not provide for more than one way to commit the crime, jury unanimity is not at issue and alternative means analysis is inapplicable.This issue involves statutory interpretation.Interpretation of a statute is a question of law over which an appellate court has unlimited review.State v. Arnett,290 Kan. 41, 47, 223 P.3d 780(2010).

When Snover was charged, the crime of criminal damage to property was provided under K.S.A. 21–3720.In pertinent part, the statute states as follows:

“(a) Criminal damage to property is by means other than by fire or explosive:

(1) Intentionally injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person; or

(2) injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder.”

The State charged Snover under K.S.A. 21–3720(a)(1) of the statute.

K.S.A. 21–3720 presents alternative means because it creates two or more ways of committing the crime of criminal damage to property.For instance, the statute describes markedly different acts: (1) criminal damage to property—without consent or (2) criminal damage to property—with intent to defraud an insurer or lienholder.Yet, Snover does not make an alternative means argument under these statutory examples.Instead, Snover argues that the aiding and abetting instruction given at trial created an alternative means for committing the crime of criminal damage to property.

Yet, the aiding and abetting statute, K.S.A. 21–3205(1), does not define a separate crime: “A person is criminally responsible for a crime committed by another person if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”SeeState v. Robinson,293 Kan. 1002, 1038, Syl.¶ 22, 270 P.3d 1183(2012)(“Aiding and abetting is not a separate crime in Kansas.”).As a result, K.S.A. 21–3205(1) merely “explains the circumstances under which a person may be criminally responsible for a crime committed by another person.”State v. Johnson,46 Kan.App.2d 870, 885, 265 P.3d 585(2011).Moreover, our Supreme Court explained the well established rule that one who has been charged as a principal may be convicted on evidence showing that he or she has merely aided and abetted the commission of the offense:

“It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and ... any person who counsels, aids or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he were a principal.[Citation omitted.]”State v. Cunningham,236 Kan. 842, 846, ...