State v. Cato-Perry , 48 Kan. App. 2d 92 ( 2012 )

Hill, J.;

Contending that the trial evidence was insufficient to support one or more of the alternative means of committing the crime, Quinten Cato-Perry appeals his aggravated robbery conviction. Following the reasoning of this court in a prior case, we reverse Cato-Perry’s conviction because there was insufficient proof of his participation in this crime as both an aider and abettor and as a principal. Because we are reversing Cato-Perry s conviction, we will not address the State’s cross-appeal concerning the departure sentence handed down in this case since that sentence is now set aside.

Two men jump the counter.

On June 25, 2007, two men, wearing hooded sweatshirts with the hoods up, walked into a Church’s Chicken restaurant in Wichita around 10 p.m. One of them asked for cups of ice (for ice water) from Church’s employee Shahid Uzzaman. After Uzzaman gave die man the cups, the two then sat near the counter and drank their ice water while Uzzaman continued working. Uzzaman never got a clear look at their faces. The witnesses described one of the men as fairly short; the other taller. The evidence suggests that Cato-Perry, at more than 6 feet tall, was the taller of the two men.

About 15 minutes after the two men entered, the taller man approached and struck Uzzaman on the left side of his face, knocking him to die ground. Uzzaman stood back up and was struck again by the same man, diis time on the front of his face, causing blood to dow. He fell to the floor a second time, injured, scared, and bleeding. He looked up, saw his assailants looking down at him, and he looked away. He considered getting back up, but he decided that he should not.

There were no other customers present in the restaurant when this happened. There were two other employees besides Uzzaman in the restaurant at the time, but they were not up front with Uz-zaman. The shift manager, Sandra Sells, was in the office counting money from one of the two cash registers and went to the front of the store when she heard Uzzaman “hollering for help.” She saw the shorter man taking money from the second cash register while the taller man stood nearby. The taller man pushed Sells up against a wall. The two men left the restaurant shortly thereafter by going out the back door. More than $200 had been taken from the cash register.

During the attack, Eddy Giron, dishwasher and cook, was in the back of the restaurant, but he overheard Uzzaman arguing with people in the front of the restaurant. The argument got louder. Giron then heard someone jump over die counter, followed by yelling. Giron went toward the front of the restaurant and saw that Uzzaman was getting “beat up.” As a result of this beating, Uzza-man sustained injuries to the left side of his face and to his nose.

The police investigation of the aggravated robbery was stalled because Uzzaman and his coworkers could not positively identify the robbers. The restaurant did not have any security cameras. None of the fingerprints, footprints, or other trace evidence initially proved useful. But 2 years later, in 2009, Wichita investigators were advised through a national database that DNA samples taken from one of the water cups the two men drank from matched the DNA of Cato-Perry.

Based on tire strength of this DNA evidence, the State charged Cato-Perry with aggravated robbery. A jury convicted him of aggravated robbery.

We repeat our standards on such questions.

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). An appellate court first looks at the language of the statute, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, the appellate court will not read into the statute something not readily found in the statute. State v. Gacey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).

As a general rule, criminal statutes must be strictly construed in favor of the accused. And any reasonable doubt as to the meaning of the statute is decided in favor of the accused. But this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to achieve legislative design and intent. State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15 (2009).

To the extent that alternative means issues involve jury unanimity, an appellate court likewise has unlimited review. State v. Stevens, 285 Kan. 307, Syl. ¶ 1, 172 P.3d 570 (2007). And because alternative means questions are ultimately resolved on the sufficiency of the evidence, that standard of review is whether, after considering all of 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 on each of the alternative means presented. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011); State v. Becker, 290 Kan. 842, 855, 235 P.3d 424 (2010).

We look first at the alternative means claim concerning aiding and abetting.

Cato-Perry makes four distinct alternative means arguments in this case: (1) the alternative means of acting as a principal or aider and abettor; (2) the six alternative means by which one can aid and abet in the commission of a crime; (3) the alternative means of taking property from one’s person or presence in order to commit aggravated robbery; and (4) the alternative means of using force or the threat of bodily harm in order to commit aggravated robbery. He asserts that the State failed to present sufficient evidence at trial to support his conviction under one or more of the alternative means. Because we agree with his first argument and are reversing his conviction, we will not address the three other arguments, as they are now moot.

Most current discussions of alternative means law in Kansas begin with State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). There, our Supreme Court cited with approval State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988), in which that court said the following:

“In an alternative means case, 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. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]”

Then, in State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010), the Supreme Court reaffirmed the Timley substantial evidence rule in alternative means cases: “We are now persuaded that the Timley alternative means rule is tire only choice to ensure a criminal defendant’s statutory entitlement to jury unanimity.”

Since that ruling, a panel of this court concluded that the principal and aider and abettor theories of liability are indeed alternative means of criminal liability. See State v. Boyd, 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), petition for review filed January 23, 2012, cross-petition for review filed February 6,2012. Boyd initially observed the “actions of an aider and abettor may be sufficiently distinct from the actions of a principal to establish an alternative means of committing the crime.” 46 Kan. App. 2d at 953. Although Boyd acknowledged aider and abettor liability “applies to pretty much every substantive criminal offense,” the court ultimately determined “the danger postulated in Wright that exists when a jury has been instructed on alternative means of committing a particular crime also exists if the jury has been giving the options of convicting a defendant as an aider and abettor or as a principal.” 46 Kan. App. 2d at 953-54. We adopt the reasoning of the Boyd panel. Given the weight our Supreme Court now gives to jury unanimity, there is a distinct possibility that some of the jurors in this case could have found Cato-Perry guilty as one aiding in the crime or as a principal of the crime. We must therefore review the evidence presented at trial.

No witness identified Cato-Perry as one of the robbers. His DNA was found on a cup at the scene. We find evidence in the record that only the shorter man took money from the cash register. The evidence also indicates that Cato-Perry was the taller of the two. From this, we conclude that the State presented evidence that Cato-Perry aided in the crime by hitting Uzzaman twice and shoving the shift manager out of the way. But we find no evidence that he acted as a principal. The only taking here was done by the shorter man.

Because there was insufficient evidence to convict Cato-Perry as bodr an aider and abettor and as a principal, we reverse his conviction and remand the case for a new trial on the charge of aiding and abetting aggravated robbery. See State v. Shaw, 47 Kan. App. 2d 994, Syl. ¶ 5, 281 P.3d 576 (2012).

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