Opinion
No. 105,603.
2012-12-21
STATE of Kansas, Appellee, v. Monh SUADY, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In a case that demonstrates one of the more bizarre dangers of online dating, Monh Suady was convicted of aggravated robbery, attempted aggravated robbery, and intentional aggravated battery. He was sentenced to a controlling prison term of 290 months. Suady's convictions arise out of an apparent scheme between him and Anna Marie Harris to rob Kenneth Price who traveled from Emporia to meet Harris in Gladstone, Missouri, for the first time. Harris was a woman with whom Price had communicated on an Internet dating website.
After driving from Emporia, Price picked up Harris at her apartment and the two went to a restaurant for lunch. En route Harris spent considerable time talking to someone on her phone and texting someone. When they arrived at the restaurant, Harris immediately disappeared into the restroom for 15 to 20 minutes.
After lunch Price dropped Harris off at her apartment, and the two agreed to meet again later that day. Price drove to a nearby Wal–Mart. After doing some shopping, he called Harris and told her where he was parked and told her that he would wait for her there.
Harris arrived at about 6 p.m., parked next to Price's car, and invited him to join her in her car. They visited in Harris' car for 10 or 15 minutes, during which Price gave Harris some money for her to pay a bill and to visit her daughter. Unknown to Price, and while he was talking to Harris, Suady climbed into the back seat of Price's car and hid.
After Price and Harris discussed a possible second date, Price got back into his car and started driving south on I–35 toward Emporia. After about 20 minutes Price was passing through Olathe, at which point Suady emerged from hiding, grabbed Price from behind, and held a knife at his throat. Suady screamed and cursed in Price's ear and demanded money. Price grabbed the knife and slammed on the brakes and began swerving back and forth in an attempt to knock Suady off balance and to attract the attention of other drivers. Price then opened the door of the moving car, let go of Suady's knife, and jumped out, causing Price to suffer serious injuries to his hand and shoulder.
After traveling about 50 feet, Price's driverless car hit the median's Jersey barrier. Suady apparently then climbed over the seat and got behind the wheel. He put the car in reverse and backed up to where Price was in the roadway. He got out of the car and again demanded money from Price. He grabbed at Price, trying to get into his pockets, pulling on his arms, and tearing Price's shirt in the process. When Suady could not find any money, he fled on foot up a nearby embankment.
The incident was witnessed by Melanie Gieringer and Jemel May, who were separately traveling south on I–35. At a point on I–35 near the Olathe Hospital exit, Gieringer saw Price's car with its reverse lights on. She saw someone trying to get out of the vehicle. As she got closer, she saw the two men struggling on the highway. May saw cars swerving into the right lane of the highway. He then saw Price, with blood on his shirt, in the middle of the road and Price's car backing up toward Price.
Price and the two witnesses each called 911. Price gave Officer Jason Gorman a description of his attacker. The police identified Suady as a suspect. Price identified him in a photo lineup. Further investigation revealed 24 telephone calls between Harris and Suady on the date of the attack. One of the phone calls originated near the Wal–Mart store.
Within minutes of the attack, Suady apparently called Harris from a location near the scene on I–35. The police later found Suady hiding underneath a bathroom vanity in the home of a girlfriend. He was charged with aggravated robbery, aggravated battery, and attempted aggravated robbery.
At trial, forensic scientist Ross Capps testified that Suady was a “potential contributor” to the mixture of DNA found on Price's shirt. Capps stated that only one out of every 8,084 people could be such a contributor. The State also introduced a surveillance video from Wal–Mart showing how Suady apparently got into the back seat of Price's car. Suady was convicted on all three counts. He now appeals his convictions and his sentences.
Sufficiency of the Evidence of Aggravated Robbery
Suady contends there is insufficient evidence to support his conviction of aggravated robbery. He claims that his temporary possession of Price's car was only incidental to his attempt to take Price's wallet and money.
When the sufficiency of evidence is challenged in a criminal case, we examine the evidence in the light favoring the prosecution to determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In doing so we do not reweigh the evidence or the credibility of the witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
In State v. Montgomery, 26 Kan.App.2d 346, 349–50, 988 P.2d 258 (1999), the court held that a taking that does nothing more than facilitate the commission of another crime does not constitute robbery. Montgomery was convicted of aggravated robbery and attempted rape. During the attempted rape, the victim's glasses came off several times during the struggle, and she put them back on. When Montgomery abandoned his attempt to rape the victim, he grabbed her glasses and left. The victim's glasses were found near the location of the attack. The court stated:
“It is clear that the removal of A.D.'s glasses was incidental to the commission of the attempted rape. Appellant removed—and then discarded—A.D.'s glasses. Clearly, he did so to facilitate his crime of attempted rape and to make it more convenient, as A.D. might be less able to identify him. There is no evidence in the record that appellant removed the glasses with an intent to keep them. All of the evidence leads to the conclusion that he took the glasses to facilitate the crime of attempted rape but not to commit the crime of robbery.” Montgomery, 26 Kan.App.2d at 350.
Here, there was no evidence that Suady intended to take Price's car. The jury was instructed that to convict Suady of aggravated robbery it must find that he intentionally took the Durango from Price's person or presence by force or threat of bodily harm to Price. When Suady attacked Price in the car as they traveled down I–35, it was not with the intent to take the car, but with the intent to take Price's money. Suady demanded Price's money, not his car. Suady got into the driver's seat after the car struck the median barrier. If he intended to take the car, he would have simply driven off with it. He did not. He used the car to return to Price so he could accost him again for his wallet. When that effort was unsuccessful, he did not take the car but abandoned it and left the scene on foot. As the taking of the victim's glasses in Montgomery was incidental to the rape, the taking of Price's car was incidental to the attempted aggravated robbery of Price's wallet.
Accordingly we must reverse Suady's conviction for aggravated robbery, his primary offense of conviction, and remand for resentencing on his remaining convictions.
Multiplicity
Next, Suady asserts that his convictions for the aggravated robbery of Price's Durango and the attempted aggravated robbery of Price's wallet are multiplicitous. Multiplicity is charging a single offense in multiple counts. It creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. State v. Sprung, 294 Kan. 300, 306, 277 P.3d 1100 (2012). But because we have reversed Suady's conviction for the aggravated robbery of Price's car, this issue is now moot and we need not address it.
Alternative Means of Aggravated Robbery
Suady argues, for the first time on appeal, that the State failed to present evidence of each alternative means of committing aggravated robbery and attempted aggravated robbery. Suady's aggravated robbery conviction relates to the taking of Price's car. Although we have reversed Suady's aggravated robbery conviction, Suady's conviction of attempted aggravated robbery remains. That conviction is for the attempted taking of Price's wallet. Suady argues this crime can be committed by the alternative means of taking property from either the person or presence of another.
We have previously held that because this issue relates to the sufficiency of the evidence necessary to support a conviction, a defendant does not have to raise this issue before the district court to preserve it for appeal. See State v. Shaw, 47 Kan.App.2d 994, 1000, 281 P.3d 576 (2012), petition for review filed August 10, 2012; State v. Rivera, 42 Kan.App.2d 914, 918, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010). Whether alternative means are involved in the case is an issue that we review de novo. See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012); State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
Alternative means arise when there are materially different ways of committing a particular crime based on the statutory definition or elements of the offense. See State v. Schreiner, 46 Kan.App.2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), petition for review filed December 5, 2011. If alternative means of committing a crime are presented to the jury, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. See State v. Brown, 295 Kan. 181, 188–200, 284 P.3d 977 (2012); State v. Wright, 290 Kan. 194, 202–03, 224 P.3d 1159 (2010).
K.S.A. 21–3427 defines aggravated robbery as robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Robbery is “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” (Emphasis added) K.S.A. 21–3426.
The fact that an attempted aggravated robbery involves taking property from “the person or presence” of another does not create alternative means of committing the crime. As explained in Brown, the mere use of the disjunctive “or” does not create alternative means; “the touchstone is legislative intent.” 295 Kan. 181, Syl. ¶ 4.
In considering of an alternative means issue, the court should “determine for each statute what the legislature's use of a disjunctive ‘or’ is intended to accomplish.” Brown, 295 Kan. 181, Syl. ¶ 7. In examining the use of the word “or” in an alternative means context, the court should consider whether the items connected by the disjunctive “or” are mere “means within a means”—also called “options within a means.” See 295 Kan. at 192–94, 196–200. The purpose of requiring jury unanimity on “options within a means” does not further the two underlying purposes of the alternative means doctrine: (1) to prevent jury confusion about what criminal conduct must be proved beyond a reasonable doubt; and (2) to prevent the State from charging every available means authorized under a criminal statute and allowing the jury to pick freely from the various means presented. 295 Kan. at 197–98.
For ease in applying the “options within a means” analysis to the facts of this case, the Brown court provides the following summary:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element of a factual circumstance that would prove the crime. Such descriptions are secondary matters—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence. [Citation omitted.]” 295 Kan. at 199–200.
In Brown, the court rejected the defendant's alternative-means challenge to language appearing in the aggravated indecent liberties with a child statute. The court concluded that the phrase “either the child or the offender, or both” falls into the category of options within a means, and the language “can be accurately described as purely descriptive of factual circumstances that may prove the distinct, material mental state element of the crime.” 295 Kan. at 202. See also State v. Rojas–Marceleno, 295 Kan. 525, Syl. ¶ 17, 285 P.3d 361 (2012) (applying the Brown analysis and concluding that the terms “committing” or “submitting to” are merely “options within a means” and are not alternative means of committing the crime of aggravated indecent solicitation of a child as defined in K.S.A. 21–3511[a] ).
In applying the “options within a means” analysis to this case, we find that taking property from the “person or presence” of another does not present alternative means of attempted robbery. See K.S.A. 21–3426. Here, the legislature's use of the phrase “person or presence” denotes the factual circumstances under which an attempted taking may occur, not alternative means by which that taking may occur.
Further, a panel of this court held in State v. Boyd, 46 Kan.App.2d 945, 951, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; cross-petition for review filed February 6, 2012, that some redundancy may be tolerated in the criminal code in order to enhance the purpose of giving fair notice of the proscribed conduct. The court stated:
“The essence of the crime is forcibly taking property when a person is present. The term ‘from the person or the presence’ of the victim describes the proximity of the property and the individual. It does so with phraseology that overlaps. Taking property from the presence of the victim (who need not be the owner of whatever the perpetrator seizes) describes an area in the general vicinity of the victim. Taking property from the person of the victim refers to the immediate environs of the body such as a pocket, a purse, or the hands. Thus, a taking ‘from the person’ is actually encompassed within a taking ‘from the presence’ of the victim. The robbery and aggravated robbery statutes would criminalize the same range of conduct even if the phrase ‘the person’ had been omitted from the definitions of those crimes. Accordingly, taking property from the person of the victim and taking property from the presence of the victim do not constitute alternative means of committing aggravated robbery.” 46 Kan.App.2d at 950.
Suady relies on State v. Robinson, 27 Kan.App.2d 724, 8 P.3d 51 (2000). But in Robinson the court dealt with an instruction error, not an alternative means issue. The district court in Robinson instructed the jury that the State had to prove that the defendant took a car from the person of another, without including the statutory reference “from the presence” of another. The court found that property can be taken from a victim's presence without it being taken from the victim's person. 27 Kan.App.2d at 728. There was evidence that the property was taken from the victim's presence but not from his person. Because the jury was instructed that it need only find that the car was taken from the victim's person, the conviction was reversed. 27 Kan.App.2d at 728–29. But unlike in Robinson, in Suady's case the jury was properly instructed that it must find that Suady attempted to take property from the person or presence of Price.
We conclude that the jury was not confronted with alternative means for committing attempted aggravated robbery. But even if “person or presence” constituted alternative means, there was substantial evidence of both here. Suady tore at Price's clothing to try to find and take his wallet. In doing so, he attempted to take Price's wallet from both his person and his presence.
Prosecutorial Misconduct
Suady claims the prosecutor committed prosecutorial misconduct when he misstated the law during his explanation of the difference between intentional aggravated battery and the lesser-included reckless aggravated battery. Suady argues that, contrary to the prosecutor's closing argument, in order to prove intentional aggravated battery the State had to show more than the fact that he intentionally snuck into the car, intentionally grabbed Price, and intentionally brandished his knife at him. Suady argues that the State had to prove that he purposefully inflicted bodily harm.
Suady relies on State v. Ochoa, 20 Kan.App.2d 1014, 1020–21, 895 P.2d 198 (1995), for support. But in Gross v. State, 24 Kan.App.2d 806, 808, 953 P.2d 689,rev. denied 264 Kan. 821 (1998), the court noted that the 1992 amendments to the aggravated battery statute eliminated the specific intent to injure requirement. Since then, the State need only prove that the underlying act was intentional rather than accidental. There is no longer a statutory requirement of a specific intent to injure. 24 Kan.App.2d at 808.
The State was required to show that Suady committed the acts with a general intent to cause physical contact with another person. See State v. Campbell, 30 Kan.App.2d 70, Syl. ¶¶ 2, 3, 39 P.3d 97,rev. denied 273 Kan. 1037 (2002). The prosecutor did not misstate the law in closing argument.
Claimed Sentencing Errors
Suady contends that by imposing the sentence in the aggravated grid box of the sentencing guidelines grid, the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 430 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has rejected this argument in State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008). We are bound to follow Johnson. See State v. Jones, 44 Kan.App.2d 139, 142–44, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Suady also contends the district court's use of his prior convictions to enhance his sentence without proof to a jury beyond a reasonable doubt violated his rights under the Sixth and Fourteenth Amendments as interpreted by Apprendi. Our Supreme Court has previously rejected this claim and continues to do so. See State v. Fewell, 286 Kan. 370, 396, 184 P.3d 903 (2008) (reaffirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ). We are bound to follow Ivory.
Affirmed in part, reversed in part, dismissed in part, and remanded for resentencing.