State v. Richard ( 2021 )


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  •                            NOT DESIGNATED FOR PUBLICATION
    No. 121,450
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    K'VEION DARNELL RICHARD,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed September 10,
    2021. Affirmed in part, reversed in part, and vacated in part.
    Kirsten B. Patty, of Wichita, for appellant.
    Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
    attorney general, for appellee.
    Before ATCHESON, P.J., GARDNER and WARNER, JJ.
    ATCHESON, J.: This case arises from a home invasion in southwest Wichita. Three
    armed invaders were met with like force from one of the residents who emptied the
    seven-shot magazine of his pistol. In the gun battle, each of the intruders was hit, and the
    resident suffered what turned out to be a comparatively minor leg wound. Another
    resident immediately called 911 to report the incident, and a third resident described the
    getaway car to the responding law enforcement officers as a dark colored sedan.
    1
    Within minutes of the call, a dark colored Cadillac sped up to the emergency room
    of a Wichita hospital, deposited three men at the entrance, and drove away. Exterior
    security cameras at the hospital recorded their arrival. Each of the three, including
    Defendant K'veion Darnell Richard, had gunshot wounds. Richard had been shot in the
    face. In the emergency room, Richard offered investigating police officers conflicting
    accounts of how he had been shot and who brought him to the hospital.
    The Sedgwick County District Attorney's office charged Richard with aggravated
    battery, aggravated burglary, two counts of aggravated assault, and two counts of
    criminal discharge of a firearm at an occupied dwelling. A jury heard evidence in the case
    in mid-November 2018. Richard did not testify during the trial. The jurors convicted him
    on all of the charges except aggravated battery; they could not reach a verdict on that
    charge. The district court later sentenced Richard to a controlling term of 56 months in
    prison for the aggravated burglary with a 36-month period of postrelease supervision,
    reflecting a midrange guidelines punishment. The district court imposed a guidelines
    sentence of 12 months in prison on each of the convictions for aggravated assault and
    criminal discharge of a firearm and ordered Richard to serve all four concurrently but
    consecutive to the 56-month sentence.
    Richard has appealed and raises two issues: (1) the sufficiency of the evidence to
    support one of the convictions for criminal discharge of a firearm; and (2) the district
    court's decision to admit evidence of a trespass that occurred at the residence the night
    before the armed intrusion. As to the first, we find Richard's point well-taken and reverse
    that conviction. As to the second, we assume the district court erroneously admitted the
    evidence, but the error was harmless. Before we detail our analysis, we add some
    additional facts.
    The armed incursion happened at a mobile home community on August 21, 2017,
    between 11 p.m. and midnight. The four occupants of the residence had retired for the
    2
    night, so the mobile home was dark inside. Two adult men had their own bedrooms, and
    a newly married couple had the third bedroom closest to the front door of the residence.
    The single man with the rearmost bedroom remained there throughout the brief intrusion
    and gun battle. The other single man heard knocking at the door, and when he undid the
    latch, three men pushed their way in. When the husband and wife heard a commotion, he
    crossed the threshold of the bedroom and fired his pistol. His wife saw some of what
    happened.
    Because the house was dark, none of the occupants could positively identify any
    of the intruders. They described the three as young Black men wearing hoodies and other
    dark clothing. One of the intruders carried a .22 caliber assault-style rifle; one or both of
    the others had handguns. The residents believed Richard had the rifle, based on his
    general appearance and build.
    The residents also believe one of the intruders fired the first shot, but everyone
    who was armed may have discharged a firearm inside the home. When the man with the
    rifle was shot, he dropped the gun and left it behind. The residents estimated the
    encounter lasted less than a minute. The occupant of the rear bedroom saw the gunmen
    flee and provided the general description of the getaway vehicle to the responding
    officers from the Wichita Police Department.
    Crime scene investigators found five .45 caliber shell casings—from three
    manufacturers—outside the mobile home. They found two spent .22 caliber shell casings
    in the living room, and a third had jammed in the rifle. There were seven .45 caliber shell
    casings roughly at the bedroom door and a single .45 caliber casing in the living room
    area. The investigators identified what appeared to be numerous bullet holes in the
    mobile home.
    3
    The investigators determined that a bullet went through an exterior wall of the
    residence and penetrated the back wall of a mobile home on the lot immediately to the
    rear. The occupant of that mobile home heard the gunshots and called 911. He later
    described fearing for his family's safety and getting his wife and stepchildren on the floor.
    Criminal Discharge of a Firearm
    The jury convicted Richard of two counts of criminal discharge of a firearm, a
    felony violation of K.S.A. 2020 Supp. 21-6308(a)(1)(A) that, in pertinent part,
    criminalizes the "[r]eckless and unauthorized discharge of any firearm . . . [a]t a dwelling
    . . . in which there is a human being." One count pertained to the bullet that struck the
    nearby mobile home; Richard has not disputed that conviction on appeal.
    Richard contends insufficient evidence supports the other conviction. On appeal,
    the State has offered alternative theories for that charge based either on Richard firing the
    rifle in the mobile home or on shots fired at the mobile home after the intruders left the
    premises in flight. The latter would impute criminal liability to Richard as an aider and
    abettor.
    In reviewing a sufficiency challenge, we construe the evidence in a light most
    favorable to the party prevailing in the district court, here the State, and in support of the
    jury's verdict. An appellate court will neither reweigh the evidence generally nor make
    credibility determinations specifically. State v. Jenkins, 
    308 Kan. 545
    , Syl. ¶ 1, 
    422 P.3d 72
     (2018); State v. Butler, 
    307 Kan. 831
    , 844-45, 
    416 P.3d 116
     (2018); State v. Pham,
    
    281 Kan. 1227
    , 1252, 
    136 P.3d 919
     (2006). The issue for review is whether rational
    jurors could have found the defendant guilty beyond a reasonable doubt. Butler, 307 Kan.
    at 844-45; State v. McBroom, 
    299 Kan. 731
    , 754, 
    325 P.3d 1174
     (2014).
    4
    As to the first theory, Richard contends he could not be convicted of criminal
    discharge of a firearm for shooting the rifle in the mobile home because the statute
    proscribes shooting at a dwelling. The district court identified one of the elements of the
    crime in the jury instructions as: "The defendant discharged a firearm at a dwelling." The
    adequacy of the instruction itself is not at issue, since it conforms to the statutory
    language. The question is whether the evidence satisfied the statutory requirements of
    K.S.A. 2020 Supp. 21-6308(a)(1)(A).
    We recently outlined the principles governing statutory review:
    "When reviewing a statute, an appellate court must, as a first priority, strive to honor the
    legislative intent and purpose. In re Marriage of Traster, 
    301 Kan. 88
    , 98, 
    339 P.3d 778
    (2014). The court should look to the words of the statute to discern that intent and
    purpose. Bussman v. Safeco Ins. Co. of America, 
    298 Kan. 700
    , 725, 
    317 P.3d 70
     (2014).
    Absent some specialized statutory definition, the words of a statute typically should be
    given their ordinary meaning. Midwest Crane & Rigging, LLC v. Kansas Corporation
    Comm'n, 
    306 Kan. 845
    , 851, 
    397 P.3d 1205
     (2017). And dictionaries (not surprisingly)
    supply those meanings. 306 Kan. at 851. Consistent with the statutory language, criminal
    statutes should be construed strictly against the State and in favor of the accused. State v.
    Coman, 
    294 Kan. 84
    , 96, 
    273 P.3d 701
     (2012); State v. Bannon, 
    55 Kan. App. 2d 259
    ,
    265, 
    411 P.3d 1236
     (2018)." State v. Baumgarner, 
    59 Kan. App. 2d 330
    , 334-35, 
    481 P.3d 170
    , rev. denied 313 Kan. ___ (April 23, 2021).
    See State v. Smith, 
    309 Kan. 929
    , 932-33, 
    441 P.3d 472
     (2019).
    Richard's argument pivots on the meaning of the word "at," as used in the statute.
    "At" is a preposition of protean definition. The word can mean "on" or "in" in reference
    to a location. Webster's New World College Dictionary 89 (5th ed. 2014) ("at" definition
    1). For example, one might say, "I met him at the candy store." Morton, Barry, and
    Greenwich, "Leader of the Pack," Red Bird Records R.B. 10-014 (1964). That would
    mean inside the store or, perhaps, on the sidewalk at the entrance and would favor the
    5
    State's theory here. But "at" can also mean "to or toward as the . . . object," as in "don't
    shout at me." Webster's New World College Dictionary 89 (5th ed. 2014) ("at" definition
    2). That definition would preclude the State's theory based on the discharge of the rifle
    inside the dwelling. The statutory language could mean either or both. The criminal code
    offers no specialized definition of "at" to be used in K.S.A. 2020 Supp. 21-6308 or
    elsewhere. To that extent, K.S.A. 2020 Supp. 21-6308(a)(1)(A) is ambiguous on its face.
    Had the Legislature intended the State's meaning, we suppose it would have used
    the more precise preposition "in." But that narrow meaning would exclude drive-by
    shootings where a firearm is discharged into a dwelling from a passing car. And it would
    preclude prosecution when the shooter stands across the street or at some greater distance
    from the dwelling. We doubt the Legislature intended to criminalize such a constrained
    range of conduct. More naturally, shooting a weapon "at" something conveys the idea
    that the something is a target or object of the action. Had the Legislature intended to
    cover both, it easily could have identified the wrongful conduct as discharging a firearm
    at or in a dwelling. But it didn't. We should avoid adding something to a statute or
    negating something already there. See State v. Bryan, 
    281 Kan. 157
    , 159, 
    130 P.3d 85
    (2006) (statute should not be read to add language not found there); see also Baumgarner,
    59 Kan. App. 2d at 335.
    So with K.S.A. 2020 Supp. 21-6308(a)(1)(A), we have a criminal statute ripe with
    ambiguity on the critical issue in Richard's prosecution. In that circumstance, we are to
    apply the rule of lenity and give the ambiguous language a reasonable reading to the
    defendant's benefit. State v. Gales, 
    312 Kan. 475
    , 485, 
    476 P.3d 412
     (2020); State v.
    Baker, 
    56 Kan. App. 2d 335
    , Syl. ¶ 3, 
    429 P.3d 240
     (2018) ("The rule of lenity requires
    that language in criminal statutes open to more than one reasonable interpretation be
    applied to the defendant's advantage."). The rule of lenity undercuts the State's
    prosecution of Richard for criminal discharge of a firearm for shooting the rifle inside the
    residence.
    6
    Our conclusion is consistent with State v. Farmer, 
    285 Kan. 541
    , 546, 
    175 P.3d 221
     (2008), in which the court recognized that K.S.A. 21-4219(b), a predecessor to
    K.S.A. 2020 Supp. 21-6308 that also criminalized "discharge of a firearm at an occupied
    dwelling," was "created to impose criminal liability where an individual discharges a
    firearm into an occupied building or vehicle." Although Farmer involved a defendant
    who shot at an occupied vehicle, the court's discussion of the identical statutory language
    bears on and bolsters Richard's argument here.
    On appeal, the State alternatively suggests Richard could be convicted of criminal
    discharge of a firearm as an aider and abettor for the shots apparently fired from outside
    the residence, as evidenced by the .45 caliber shell casings found there. In K.S.A. 2020
    Supp. 21-5210, the Legislature has codified two forms of aiding and abetting to extend
    liability to persons who do not directly participate in the charged crime. The statute, in
    pertinent part, provides:
    "(a) A person is criminally responsible for a crime committed by another if such
    person, acting with the mental culpability required for the commission thereof, advises,
    hires, counsels or procures the other to commit the crime or intentionally aids the other in
    committing the conduct constituting the crime.
    "(b) A person liable under subsection (a) is also liable for any other crime
    committed in pursuance of the intended crime if reasonably foreseeable by such person as
    a probable consequence of committing or attempting to commit the crime intended."
    K.S.A. 2020 Supp. 21-5210(a), (b).
    Under paragraph (a), an individual may be liable for advising, hiring, or otherwise
    aiding someone else in committing a crime. For example, persons standing lookout for
    their criminal compatriots or serving as getaway drivers are guilty as aiders and abettors
    under Kansas law. See State v. Gleason, 
    277 Kan. 624
    , 634-35, 
    88 P.3d 218
     (2004)
    (lookout); State v. Burton, 
    35 Kan. App. 2d 876
    , 880-81, 
    136 P.3d 945
     (2006) (getaway
    7
    driver). Paragraph (b) imposes liability in a different way: A person joining with others
    to carry out a crime is also legally responsible for any additional crimes foreseeably
    committed during the illicit enterprise. See State v. Boyd, 
    46 Kan. App. 2d 945
    , 956-57,
    
    268 P.3d 1210
     (2011) (discussing comparable language in K.S.A. 21-3205, predecessor
    to K.S.A. 2020 Supp. 21-5210), overruled on other grounds by State v. Betancourt, 
    299 Kan. 131
    , 
    322 P.3d 353
     [2014]). The pattern jury instruction on aiding and abetting
    liability incorporates the statutory language on each theory largely verbatim as separate
    paragraphs to be used as may be appropriate in a given case. PIK Crim. 4th 52.140 (2020
    Supp.).
    Here, the district court instructed the jurors: "A person is criminally responsible
    for a crime if the person, either before or during [its] commission, and with the mental
    culpability required to commit the crime intentionally aids another to commit the crime."
    The instruction conforms to language in PIK Crim. 4th 52.140 and draws directly on the
    theory of aiding and abetting liability outlined in K.S.A. 2020 Supp. 21-5210(a). In this
    case, the instruction applied to each charged crime the jury considered. At the
    streamlined on-the-record instruction conference, the State indicated it requested the
    limited version of PIK Crim. 4th 52.140 the district court intended to give and agreed to
    the instruction without reservation. Accordingly, the State elected to proceed on that
    theory of aiding and abetting liability.
    The evidence established Richard discarded the rifle in the dwelling after he was
    shot and began to retreat. The shell casings outside correspond to shots his partners in
    crime fired during their flight, presumably to keep the armed resident at bay. There is no
    evidence to suggest the intruders fired shots into the dwelling as they entered. All of the
    evidence is to the contrary.
    Richard—injured, disarmed, and fleeing—could not have aided the other two in
    discharging their firearms into the dwelling as all three retreated. Richard was, at most,
    8
    associated with them when they committed that crime, an affiliation that is not enough to
    support aiding and abetting on the State's theory. See State v. Llamas, 
    298 Kan. 246
    , 260,
    
    311 P.3d 399
     (2013). The jury instruction conformed to that principle of criminal liability
    and the recommendation in Llamas that the "better practice" is to so instruct jurors. 298
    Kan. at 261-62. The evidence, then, did not support convicting Richard on the State's
    aiding and abetting theory.
    The State did not pursue an aiding and abetting theory based on Richard's
    participation in the aggravated burglary when he entered the residence with his cohorts
    and, thus, aided or otherwise participated in that crime. Under the principle of criminal
    liability codified in K.S.A. 2020 Supp. 21-5210(b), Richard, in turn, could have been
    liable for the others' criminal conduct in shooting at the residence as they fled as a
    "reasonably foreseeable . . . consequence" of the burglary. We cannot appropriate a
    theory never submitted to the jury to uphold a conviction, since we would be substituting
    our judgment for whatever the jury might have decided to find a defendant guilty. See
    State v. Watt, No. 121,266, 2020 WL7413773, at *4 (Kan. App. 2020) (unpublished
    opinion); accord Sullivan v. Louisiana, 
    508 U.S. 275
    , 277, 
    113 S. Ct. 2078
    , 
    124 L. Ed. 2d 182
     (1993) (A criminal defendant's right to jury trial guaranteed in the Sixth Amendment
    to the United States Constitution "includes, of course, as its most important element, the
    right to have the jury, rather than the judge, reach the requisite finding of 'guilty.'").
    We, therefore, conclude the State presented insufficient evidence to support one of
    Richard's convictions for criminal discharge of a firearm. The appropriate remedy
    requires we reverse that conviction, vacate the corresponding sentence, and enter a
    judgment of acquittal on the charge. See Baumgarner, 59 Kan. App. 2d at 341. Because
    of the concurrent sentences the district court imposed on Richard, we need not remand
    for resentencing or any other purpose.
    9
    District Court's Evidentiary Ruling
    During the evening of August 20, 2017—the day before the armed invasion—
    three Black men entered the mobile home through the unlocked front door. The husband
    and wife interceded, and the trio quickly left. Before the trial, the State requested an order
    from the district court to admit testimony about the August 20 entry and represented that
    the husband and wife could make positive identifications of Richard as having been one
    of the three people and would testify the intruder carrying the rife on August 21 had the
    same general appearance and build as Richard. On that basis, the district court granted the
    State's request. The State's proffer probably established a foundation to admit the August
    20 entry under K.S.A. 2020 Supp. 60-455(b) as evidence of Richard's identity—the
    linchpin issue—and possibly of a common scheme or plan and preparation.
    In their trial testimony, however, neither the husband nor the wife could say that
    Richard entered their residence on August 20 or on August 21. They disclaimed getting a
    good look at the facial features of any of the men who came in either day. All they could
    tell the jurors was several young Black men entered the house without permission on
    August 20, a man with the same general appearance and size as one of them forced his
    way in the next night along with two other intruders, and Richard was of the same race
    and of a similar age and physique. We believe that trial testimony was sufficiently
    indefinite to call into question the August 20 incident as admissible evidence tending to
    prove Richard's participation in the August 21 home invasion. See State v. Boysaw, 
    309 Kan. 526
    , 541, 
    439 P.3d 909
     (2019) (In weighing the admissibility of evidence under
    K.S.A. 60-455, the district court should consider, among other factors, the clarity of proof
    of the other crime or civil wrong to be introduced and how probative it may be of the
    material issue.).
    Here, the material issue was the identity of Richard as one of the August 21 home
    invaders. The State assembled circumstantial evidence supporting his participation, even
    10
    though none of the residents could make an in-court eyewitness identification of Richard
    as one of the gunmen. Richard did bear a general physical resemblance to one of the three
    intruders. At least two of the intruders were shot and a few minutes later, a car deposited
    three men with gunshot wounds at a local hospital. The car matched the description of the
    getaway vehicle. Richard immediately gave demonstrably inconsistent accounts to police
    as to how he was shot. See United States v. Stoney End of Horn, 
    829 F.3d 681
    , 687 (8th
    Cir. 2016) (defendant's inconsistent explanations for otherwise inculpatory circumstances
    are themselves indicative of guilt); State v. Yoksh, 
    989 S.W.2d 227
    , 233 (Mo. Ct. App.
    1999) (shifting explanations evidence of plan to conceal guilt); Sumpter v. State, No.
    117,732, 
    2019 WL 257974
    , at *9 (Kan. App.) (unpublished opinion) (demonstrably false
    exculpatory statement constitutes evidence tending to establish guilt), rev. denied 
    310 Kan. 1071
     (2019).
    All of that evidence also tends to suggest Richard might have been one of the three
    unidentified men who entered the mobile home without permission on August 20. But
    whether Richard did so is not itself a material issue in the case, since he faced no criminal
    charges for the August 20 incident. Conversely, evidence that an unidentified young
    Black man who was similar in appearance to Richard barged into the residence on August
    20 is not really probative of who invaded the premises the next day or, more particularly,
    that Richard did. In short, the inexact evidence about who participated in the August 20
    entry may well render the incident irrelevant in the sense the information makes it neither
    more likely true nor less likely true that Richard joined in the August 21 home invasion.
    See State v. Davis, 
    312 Kan. 259
    , 276, 
    474 P.3d 722
     (2020); City of Leawood v.
    Puccinelli, 
    56 Kan. App. 2d 108
    , 118, 
    424 P.3d 560
     (2018); State v. Otero, No. 114,762,
    
    2017 WL 4183208
    , at *6 (Kan. App. 2017) (unpublished opinion) ("Relevant evidence
    makes a disputed, material fact either more likely or less likely true.").
    Without a firm eyewitness identification of Richard as one of the men entering the
    mobile home on August 20, the incident seems to lack the clarity and probativeness, as
    11
    outlined in Boysaw, to be admitted as 60-455 evidence of identity of any of the
    participants in the armed invasion the next night. Rather, the evidence from August 21
    tends to show Richard was there on August 20—not the other way around. We, therefore,
    assume without deciding the district court erred in permitting the jury to consider
    testimony about the August 20 incident.
    The question remains, however, whether the assumed error in admitting that
    evidence substantially prejudiced Richard. State v. Claerhout, 
    310 Kan. 924
    , 931, 
    453 P.3d 855
     (2019) (admission of 60-455 evidence subject to review for harmless error).
    Because any error undercuts a statutory right of Richard, the State, as the benefited party,
    must demonstrate there is no reasonable probability the wrongfully admitted evidence
    affected the outcome of the trial in light of the record as a whole. State v. McCullough,
    
    293 Kan. 970
    , 981-82, 
    270 P.3d 1142
     (2012); State v. Brown, 
    58 Kan. App. 2d 599
    , 617,
    
    473 P.3d 910
     (2020).
    Here, we have little difficulty concluding any evidentiary error to be harmless
    precisely because the circumstances of the August 20 incident are irrelevant to proving
    Richard's identity as one of the gunmen and, hence, his guilt or innocence. The trial
    testimony from the husband and wife about the August 20 entry neither advanced the
    State's proof that Richard participated in the August 21 armed intrusion nor impaired
    Richard's defense. That testimony may appropriately be characterized as inconsequential
    on the crucial point—Richard's identity—and added nothing substantive to the
    circumstantial evidence properly admitted based on what happened on August 21 at both
    the residence and the hospital. We have no doubt the jury would have come to the same
    conclusions had the district court disallowed the testimony.
    Having considered both points Richard has raised, we reverse his conviction for
    one count of criminal discharge of a firearm, vacate that sentence, and enter a judgment
    of acquittal on that charge. We otherwise affirm Richard's convictions and sentences.
    12
    Affirmed in part, reversed in part, and vacated in part.
    13