State v. Reynolds ( 2024 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,504
STATE OF KANSAS,
Appellee,
v.
RYAN DAVID REYNOLDS,
Appellant.
SYLLABUS BY THE COURT
1.
The State may charge a defendant with a single offense that can be committed in
more than one way. This is called an alternative means crime. A district court presents an
alternative means crime to a jury when its instructions incorporate a statute's multiple
means for a charged crime's single statutory element.
2.
K.S.A. 2017 Supp. 21-5807(b) describes alternative means for committing
aggravated burglary that depend, in part, on where the crime occurs—a dwelling, a
nondwelling building, or a means of conveyance.
3.
K.S.A. 2017 Supp. 21-5807(b) criminalizes entering into or remaining within a
dwelling, a nondwelling building, or a means of conveyance, in which a human being is
present, "with intent to commit a felony." The quoted element is not limited to any
particular felony.
1
4.
If a defendant claims a jury instruction contained an alternative means error, the
reviewing court must consider whether the instruction was both legally and factually
appropriate. The court will use unlimited review to determine whether the instruction was
legally appropriate and will view the evidence in the light most favorable to the
requesting party when deciding whether the instruction was factually appropriate. Upon
finding error, the court will then determine whether that error was harmless, using the test
and degree of certainty set forth in State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012),
and State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011). Contrary language in State v.
Wright, 290 Kan. 194, 224 P.3d 1159 (2010), disapproved of on other grounds by State v.
Brooks, 298 Kan. 672, 317 P.3d 54 (2014), and its progeny is disapproved.
5.
Unpreserved instructional issues that are not clearly erroneous may not be
aggregated in a cumulative error analysis under K.S.A. 22-3414(3).
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 17, 2022.
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Oral argument held March 31, 2023.
Supplemental briefing completed December 26, 2023. Opinion filed July 12, 2024. Judgment of the Court
of Appeals affirming the district court is affirmed on the issues subject to review. Judgment of the district
court is affirmed on the issues subject to review.
Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
Jodi Litfin, deputy district attorney, argued the cause, and Derek Schmidt, former attorney
general, and Kris W. Kobach, attorney general, were with her on the briefs for appellee.
The opinion of the court was delivered by
2
BILES, J.: Armed with a handgun, Ryan Reynolds broke into his estranged wife's
house through a downstairs door used for her salon business. He went upstairs to the
living area, where he confined his wife, their young daughter, and his wife's sister-in-law.
He threatened to kill everyone inside. The two women eventually escaped with the child,
and police apprehended Reynolds as he was leaving. A jury convicted him of multiple
crimes arising from this incident. A Court of Appeals panel affirmed his convictions for
aggravated burglary and aggravated endangering a child. State v. Reynolds, No. 121,504,
2022 WL 2188164, at *1 (Kan. App. 2022) (unpublished opinion). Both Reynolds and
the State challenge that decision. We affirm on the issues subject to review, although our
analysis differs from the panel's.
In particular, we agree with Reynolds that the district court presented the
aggravated burglary charge to the jury as an alternative means crime in the instructions
by referring to both a building and a dwelling as locations for committing the offense.
And we agree with Reynolds that the State's evidence did not support the building
alternative, so we must confront our caselaw requiring his conviction's automatic
reversal. See State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), disapproved of on
other grounds by State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014). To that end, we
ordered additional briefing and now reject Wright's inflexible rule that requires
substantial evidence supporting each means of a criminal element included in an
instruction to uphold a conviction. Wright, 290 Kan. 194, Syl. ¶ 2.
In Wright's place, we employ our familiar instructional error analysis. And on that
basis, we hold the aggravated burglary instruction in Reynolds' case was factually
inappropriate but of no consequence. We have no hesitation concluding the jury
understood all occupants were in the upstairs living area during the intrusion and found
Reynolds guilty of aggravated burglary of a dwelling. None of the evidence confuses that
reality, and the jury can be relied on to do what the district court instructed it to do—
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apply the law to the only evidence available in arriving at its verdict. See Griffin v.
United States, 502 U.S. 46, 59, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991) (holding due
process does not require setting aside general guilty verdict in a multiple-object
conspiracy when evidence supported only one object); State v. De La Torre, 300 Kan.
591, Syl. ¶ 3, 331 P.3d 815 (2014) (holding the clearly erroneous harmless error standard
applied in a multiple acts case when unanimity instruction not requested or its absence
not objected to).
FACTUAL AND PROCEDURAL BACKGROUND
Reynolds' wife, Kayla, filed for divorce in July 2017. A court awarded her
temporary possession of their home with a lower-level salon, where she worked as a
cosmetologist. She lived upstairs with the couple's daughter.
About 6:15 a.m., on November 4, 2017, Kayla heard loud banging on an exterior
door to the house. She gathered in a bedroom with her daughter and sister-in-law, Lynzie,
who had stayed overnight. Lynzie said Reynolds was outside. He pounded on the
windows and told Kayla not to call the police, but she did anyway. While on the phone
with a dispatcher, Kayla heard crashing noises downstairs in the salon and sounds of
Reynolds coming up the stairs before he kicked in the bedroom door. She testified he was
"out of control" and yelling things about "money and saving the world." He kept trying to
grab their daughter.
Reynolds pulled out a handgun, screaming that he loved his daughter. He said he
would hurt "whoever was there" and was "going to kill everyone." Lynzie testified he
kept asking where the other people in the house were. At some point, he told the
dispatcher he would kill everybody there.
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Kayla and Lynzie said Reynolds positioned himself in front of the room's only exit
and stopped them from leaving. Lynzie persuaded him to search the house to prove no
one else was there. As he stepped out, they ran away and went to a neighbor's home.
Reynolds followed, yelling for Kayla to come back. Police officers stopped him as he
pulled his car out of the driveway. They took him into custody after a two-hour standoff.
A jury convicted Reynolds of aggravated burglary, two counts of aggravated
assault, criminal threat, aggravated endangering a child, interference with law
enforcement, stalking, and two counts of criminal damage to property. The district court
sentenced him to a controlling term of 180 months in prison and 36 months of postrelease
supervision.
Reynolds appealed the aggravated burglary, aggravated child endangerment, and
criminal threat convictions. A Court of Appeals panel reversed the criminal threat
conviction but upheld the others. Reynolds, 2022 WL 2188164, at *1. Reynolds asked for
our review of the aggravated burglary and aggravated child endangerment convictions.
He also renews a cumulative error claim. The State conditionally cross-petitioned seeking
review of the panel's aggravated burglary conviction analysis. The State did not challenge
the criminal threat conviction's reversal, so that much is settled in Reynolds' favor. See
State v. Moler, 316 Kan. 565, 569, 519 P.3d 794 (2022); Supreme Court Rule 8.03(i)(1)
(2024 Kan. S. Ct. R. at 59).
We granted both requests for review. Jurisdiction is proper. See K.S.A. 20-3018(b)
(providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b)
(Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for
review).
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AGGRAVATED BURGLARY: ALTERNATIVE MEANS
(BUILDING OR DWELLING)
The State may charge a defendant with a crime that can be committed in more
than one way. This is called an alternative means crime. See State v. Rucker, 309 Kan.
1090, 1094, 441 P.3d 1053 (2019). A district court presents an alternative means crime to
a jury when its instructions on a charged offense incorporate multiple means for a single
statutory element. State v. Sasser, 305 Kan. 1231, 1239, 391 P.3d 698 (2017). Reynolds
argues the district court presented the aggravated burglary offense to the jury as an
alternative means crime by separately identifying both a building and a dwelling as
locations for committing the offense. We agree with him.
Additional facts
A grand jury indicted Reynolds with one count of aggravated burglary, charged as
a level four, person felony—the severity level specified only for aggravated burglary of a
dwelling. K.S.A. 2017 Supp. 21-5807(b) provides:
"(b) Aggravated burglary is, without authority, entering into or remaining within
any:
(1) Dwelling in which there is a human being, with intent to commit a felony,
theft or sexually motivated crime therein;
(2) building, manufactured home, mobile home, tent or other structure which is
not a dwelling in which there is a human being, with intent to commit a felony, theft or
sexually motivated crime therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of
persons or property in which there is a human being, with intent to commit a felony, theft
or sexually motivated crime therein."
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The district court drew from this statutory language to craft its aggravated burglary
instruction for the jury's deliberation:
"The defendant is charged in Count 4 with aggravated burglary. The defendant
pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant entered into or remained in a building or dwelling.
"2. The defendant did so without authority.
"3. The defendant did so with the intent to commit kidnapping, aggravated
assault or criminal threat therein.
"4. At the time there was a human being in the building or dwelling.
"5. This act occurred on or about the 4th day of November, 2017, in Shawnee
County, Kansas." (Emphasis added.)
Reynolds highlights the terms, "building or dwelling," as dual means for the
crime's location element. The jury's general verdict form simply recited: "We, the jury,
find the defendant guilty of the crime of Aggravated Burglary as charged in Count 4." It
did not differentiate between the two terms.
The district court's instruction set out alternative means
Reynolds argues the instructions set out alternative means for the crime's location
element. He is correct. K.S.A. 2017 Supp. 21-5807(b) identifies building and dwelling in
7
different subsections and each describes materially distinct situations. See State v.
Williams, 303 Kan. 750, 757, 368 P.3d 1065 (2016) ("The legislature typically signals its
intent to create an alternative means by 'separating alternatives into distinct subsections
of the same statute.'"); State v. Davis, 312 Kan. 259, 266, 474 P.3d 722 (2020) (looking to
whether "there is a material difference between the" alleged alternative means). We hold
K.S.A. 2017 Supp. 21-5807(b) describes alternative means for committing aggravated
burglary that depends, in part, on where the crime occurs—a dwelling, a nondwelling
building, or a means of conveyance.
We also easily agree Reynolds' case presents what we would consider an
alternative means error. The uncontroverted evidence shows he entered the unoccupied
lower-level salon, went upstairs, and broke into the occupied living quarters. And on that
basis, he notes the obvious—no one was in the salon, so no evidence supports convicting
him of aggravated burglary of a nondwelling building, one of the two instructed means.
Under our current precedent, when a defendant raises an alternative means issue, a
reviewing court applies what we refer to as Wright's super-sufficiency test. 290 Kan. at
206. But the State asks us to reconsider that caselaw, so we do that next.
Deciding on the correct law to apply
Under super-sufficiency, if a jury instruction presents an alternative means crime,
the court decides whether sufficient evidence supports each means. If not, the court
reverses the conviction, because only automatic reversal "ensure[s] a criminal defendant's
statutory entitlement to jury unanimity." Wright, 290 Kan. at 206. And if we continue
following Wright, we must reverse Reynolds' aggravated burglary conviction because all
the victims were in the upstairs dwelling during the incident.
8
But automatic reversal assumes jury unanimity—the foundation on which Wright
rests—is a genuine concern here, despite everyone agreeing all occupants were upstairs.
Said differently, why can't we employ harmless error to conclude the jury unanimously
convicted Reynolds on the only means for which there was evidence of human
presence—the dwelling? See State v. Brown, 295 Kan. 181, 218, 284 P.3d 977 (2012)
(Moritz, J., concurring) ("[W]hen we instruct a jury on a legal means for committing a
crime for which there is no evidence and an alternative means of committing the same
crime for which there is sufficient evidence and the jury convicts the defendant of that
crime, we can reliably conclude it did so unanimously upon the only means for which
there was evidence.").
To illustrate, consider a hypothetical prosecution for aggravated criminal sodomy
with a child victim much like the scenario in State v. Dern, 303 Kan. 384, 362 P.3d 566(2015). There, the district court mistakenly instructed the jury that
"'[s]odomy means: (1) oral contact or oral penetration of the female genitalia or oral
contact of the male genitalia; (2) oral or anal sexual relations between a person and an
animal; (3) sexual intercourse with an animal; or (4) anal penetration, however slight, of
a male or female by any body part or object.'" (Emphases added.) 303 Kan. at 396.
Now assume the evidence supports convicting on the first and fourth means
involving human beings, but no evidence exists as to the second and third means
involving animals. How does it make any sense to require the conviction's reversal and a
new trial over a worry that jurors somehow mixed up the alleged sex with a child for sex
with an animal? Yet reversal is what our caselaw currently demands for our hypothetical
because Wright uniquely equates this juror unanimity concern with structural error. Some
course correction seems appropriate. After all, "jurors are well equipped to analyze the
evidence." Griffin, 502 U.S. at 59.
9
This concern is not new. Our court has struggled for decades over the
consequences for a defendant's conviction when the jury instructions presented one or
more alternative means not factually supported by the evidence. And no viewpoint has
left this back-and-forth unscathed. See Mott, Alternative Means Jurisprudence in Kansas:
Why Wright Is Wrong, 62 U. Kan. L. Rev. 53, 53 (2013) ("Untied from any mooring,
alternative means jurisprudence in Kansas has drifted into a strange and confusing world
where 'secondary matters' infest every corner of the criminal code.").
No doubt this conundrum accounts for the string of past cases taking different
views at different times. For instance, in State v. Wilson, 220 Kan. 341, 344, 552 P.2d
931 (1976), disapproved of on other grounds by State v. Quick, 226 Kan. 308, 317, 597
P.2d 1108 (1979), the court sustained a first-degree murder conviction based on
"duplicate theories" of premeditated murder and felony murder because the evidence
supported both theories, avoiding any need to discuss a remedy. Sixteen years later, the
court rejected jury unanimity concerns and upheld three first-degree murder convictions,
even though sufficient evidence supported only one alleged alternative theory for each
conviction. State v. Grissom, 251 Kan. 851, 893, 840 P.2d 1142 (1992). The Grissom
court did not explicitly employ a harmless error model, but its reasoning resembled it.
Nearly two years later, the court again avoided remedy by noting sufficient
evidence existed for each alternative means alleged in State v. Timley, 255 Kan. 286, Syl.
¶ 1, 875 P.2d 242 (1994), disapproved of on other grounds by Brooks, 298 Kan. 672. But
it returned to harmless error when the evidence did not support each alternative means in
State v. Dixon, 279 Kan. 563, 606, 112 P.3d 883 (2005) (relying on Grissom). Three
years later, the court detoured to an instructional error paradigm for a remedy in an
aggravated burglary case in State v. Cook, 286 Kan. 1098, 1108, 191 P.3d 294 (2008)
(conducting clear error analysis). And two years after that, the Wright court imposed its
10
super-sufficiency test, requiring sufficient proof for all alternative means to avoid
reversal. Wright, 290 Kan. at 205-06.
But over the next 14 years, detractors to Wright's do-or-die test persisted in
questioning whether it supplies an appropriate remedy. See, e.g., Brown, 295 Kan. at 226-
27 (Moritz, J., concurring) (proposing modified harmless error analysis to affirm a
conviction when sufficient evidence supports one means and no evidence supports
another but reverse when there is sufficient evidence of one means and insufficient
evidence of the other); Dern, 303 Kan. at 415 (Biles, J., concurring in part)
(characterizing a conviction's reversal under Wright's super-sufficiency rule as
"nonsensical" under the case facts; suggesting adoption of a harmless error test); Dern,
303 Kan. at 417 (Johnson, J., concurring in part) (rejecting modified approach but
expressing amenability to harmless error); State v. Johnson, 310 Kan. 835, 845, 450 P.3d
790 (2019) (Stegall, J., dissenting) (arguing for modified harmless error); Mott, 62 U.
Kan. L. Rev. at 91-92 ("When a trial court makes an alternative means error in Kansas by
allowing a jury the option of convicting a defendant on a factually inadequate statutory
theory, the harmless error statute should apply no matter how . . . [the] judicially-
enhanced definition of alternative means might classify the elements in question.").
No doubt sensing this continued angst with Wright's reasoning, the State argues
we should overrule it if we accept Reynolds' claim that alternative means error occurred.
Reynolds did not respond to the State's suggestion initially. But we discussed it at oral
argument and ordered additional briefing on the matter, including asking for any other
appropriate approach to determine a remedy short of structural error. Predictably,
Reynolds embraces Wright and demands a new trial on the dwelling alternative, while the
State again urges us to overrule Wright and replace it with a typical harmless error
analysis, citing State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), and State v. Plummer,
295 Kan. 156, 283 P.3d 202 (2012).
11
Disapproving precedent is not taken lightly. In State v. Sherman, 305 Kan. 88, Syl.
¶¶ 2-3, 378 P.3d 1060 (2016), the court restated the cautions embedded within our stare
decisis doctrine:
"2. Once a point of law has been established by a court, it will generally be
followed by the same court and all courts of lower rank in subsequent cases when the
same legal issue is raised. Stare decisis operates to promote system-wide stability and
continuity by ensuring the survival of decisions that have been previously approved by a
court. The application of stare decisis ensures stability and continuity—demonstrating a
continuing legitimacy of judicial review. . . .
"3. Stare decisis is not a rigid inevitability but a prudent governor on the pace of
legal change. A court of last resort will follow that rule of law unless clearly convinced it
was originally erroneous or is no longer sound because of changing conditions and that
more good than harm will come by departing from precedent."
Still, the Sherman court overruled State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004)
(requiring a particularized harmlessness inquiry for prosecutorial misconduct cases),
reasoning its circumstance did not compel stare decisis and the new rule would bolster
justice. Cf. Crist v. Hunan Palace, Inc., 277 Kan. 706, Syl. ¶ 6, 89 P.3d 573 (2004)
("Considerations in favor of stare decisis are at their acme in cases involving property
and contract rights, where reliance interests are involved.").
Reynolds asserts overruling Wright will do more harm than good. He maintains
"Wright incentivizes prosecutors to provide clear articulate theories for a jury to
consider," while harmless error would weaken an accused's jury unanimity right, creating
an endless series of appeals to determine whether an error is harmless. The State insists
on a departure, arguing Wright was originally flawed. We agree with the State.
12
Wright says it finds its source of law from Kansas statute, so we start with that
statute to see how well Wright holds up. See 290 Kan. at 201 ("Jury unanimity on guilt in
a criminal case is statutorily required in Kansas. See K.S.A. 22-3421."); State v. Young,
313 Kan. 724, 728, 490 P.3d 1183 (2021) ("Statutory interpretation begins with the words
of the statute because the words chosen by the Legislature are the best expression of
legislative intent."). K.S.A. 22-3421 provides:
"The verdict shall be written, signed by the presiding juror and read by the clerk
to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the
jury must be sent out again; but if no disagreement is expressed, and neither party
requires the jury to be polled, the verdict is complete and the jury discharged from the
case. If the verdict is defective in form only, it may be corrected by the court, with the
assent of the jury, before it is discharged."
This plain and unambiguous language requires that a jury render its verdict
without any disagreement, meaning the verdict must be unanimous, i.e., a general verdict.
The Kansas Code of Criminal Procedure, K.S.A. 22-2101 et seq., does not define
"verdict," but in a criminal prosecution, "'the only proper verdicts to be submitted . . . are
"guilty" or "not guilty" of the charges.'" State v. Obregon, 309 Kan. 1267, 1278, 444 P.3d
331 (2019) (quoting State v. Osburn, 211 Kan. 248, 256, 505 P.2d 742 [1973]); Osburn,
211 Kan. at 255 (noting Kansas criminal procedure does not provide for submitting
special questions to a jury).
On its face, K.S.A. 22-3421 simply demands a jury's unanimous "guilty" decision
and nothing more. But the Wright court added something not found in the statute:
"2. In an alternative means case, there must be jury unanimity as to the crime
charged, but not as to the particular means by which the crime was committed, so long as
13
substantial evidence supports each means." (Emphasis added.) Wright, 290 Kan. 194,
Syl. ¶ 2.
As readily seen, the italicized language has no obvious statutory origin.
More importantly, Wright rushed to formulate a remedy even though none was
required under its facts. See 290 Kan. at 206 ("The evidence in this case was sufficient to
find Wright guilty beyond a reasonable doubt of committing rape by force or fear."). For
unexplained reasons, Wright prescribed a solution—structural error—for a problem not
presented by the case. It did this by imposing what it termed a "'super-sufficiency'" rule it
found in another case. See 290 Kan. at 203 (discussing Timley, 255 Kan. 286; declaring,
"If evidence had been lacking on either means alleged, Timley's rape conviction would
have been reversed.").
But Timley said nothing about reversal or remedy because there was no alternative
means error in that case either. See Timley, 255 Kan. at 290 ("Timley's counsel readily
points out that there was evidence from which the jury could determine that each sexual
act was the result either of force, based on Timley's choking the victims, or of fear, based
on the threats Timley made to the victims."). So how did Wright deduce that Timley's
conviction would have been reversed in a factual situation not presented? We have no
clue. And why would it matter anyway when Wright's facts did not require a remedy
because evidence supported both alternative means? Wright's logic was imagined.
Wright references a law review article, Beier, Lurching Toward the Light:
Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275 (2005),
which advocated for automatic reversal when super sufficiency is absent based on a
general citation to a death penalty case with an erroneous reasonable-doubt jury
instruction. See Beier, 44 Washburn L.J. at 299 (citing Sullivan v. Louisiana, 508 U.S.
14275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 [1993]). But the exceptional remedy necessary to
address the pervasive harm to a trial's fairness created by a faulty reasonable-doubt
instruction is hardly comparable to any concerns emanating from K.S.A. 22-3421's
general verdict provisions. See Johnson, 310 Kan. at 913 (defining structural error as rare
and so pervasive it defies harmless error analysis). So neither Timley nor the referenced
law review article justifies the unnecessary remedy Wright seemed compelled to conjure.
To be sure, K.S.A. 22-3421 does not demand super sufficiency; it simply says, "If
any juror disagrees, the jury must be sent out again." But other statutes do give direction
for addressing trial errors and they consistently specify harmless error review. For
example, K.S.A. 2023 Supp. 60-261 straightforwardly provides:
"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights."
Similarly, K.S.A. 60-2105 states:
"The appellate court shall disregard all mere technical errors and irregularities
which do not affirmatively appear to have prejudicially affected the substantial rights of
the party complaining, where it appears upon the whole record that substantial justice has
been done by the judgment or order of the trial court; and in any case pending before it,
the court shall render such final judgment as it deems that justice requires, or direct such
judgment to be rendered by the court from which the appeal was taken, without regard to
technical errors and irregularities in the proceedings of the trial court."
Taken together, these statutes direct appellate courts to address trial error by
reversing convictions only when it prejudices a defendant's substantial rights and the
15
party benefiting from the error fails to show there is no reasonable probability the error
affected the trial's outcome in light of the entire record. See Brown, 316 Kan. at 162;
Black's Law Dictionary 1584 (11th ed. 2019) (defining "substantial right" as "[a]n
essential right that potentially affects the outcome of a lawsuit and is capable of legal
enforcement and protection, as distinguished from a mere technical or procedural right").
This is a classic harmless error approach used every day by our appellate courts. Yet
alternative means error stands as an outlier, even though Wright characterizes it as a
statutorily based issue. Wright, 290 Kan. at 201.
An even more specific option emerges in K.S.A. 22-3414(3), because any
argument there was insufficient evidence to support each alternative means presented
actually challenges the instruction's factual appropriateness. See State v. Wimbley, 313
Kan. 1029, 1033, 493 P.3d 951 (2021) ("Factual appropriateness depends on whether
sufficient evidence . . . supports the instruction."). And that statute's analytical rubric
straightforwardly directs:
"No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless the party objects thereto before the
jury retires to consider its verdict stating distinctly the matter to which the party objects
and the grounds of the objection unless the instruction or the failure to give an instruction
is clearly erroneous."
But Wright shuns harmless error paradigms under the pretext of statutory juror
unanimity and substitutes a court-created remedy mandating reversal unless sufficient
evidence supports every instructed means. This is evident when Wright explained:
"'[A] reversal mandated by Timley is a reversal for insufficient evidence. An insufficiency
error cannot be harmless because it means the State failed to meet its burden of proving
16
the defendant guilty beyond a reasonable doubt. This is a most basic guarantee of due
process in criminal cases.
"'The Timley super-sufficiency condition evolved for a good reason. It evolved
because we recognized that we were allowing uncertainty as to how the State persuaded
each juror. We were comfortable with this uncertainty—at that particular level of
generality in the jury's factfinding—only because we insisted on assurance that each
juror's vote was supported by a means for which there was sufficient evidence. . . .'
"We are now persuaded that the Timley alternative means rule is the only choice
to ensure a criminal defendant's statutory entitlement to jury unanimity." (Emphases
added.) Wright, 290 Kan. at 205-06.
Setting aside its mischaracterization of Timley, Wright seems to blend K.S.A. 22-
3421's discrete concern for general verdict unanimity with the Fourteenth Amendment's
Due Process Clause's need for sufficient evidence. But due process does not support
automatic reversal either. In State v. Sieg, 315 Kan. 526, 530, 509 P.3d 535 (2022), the
court said:
"The Due Process Clause of the Fourteenth Amendment to the United States
Constitution requires proof beyond a reasonable doubt of every element of the crime
charged. It also requires fact-finders to rationally apply the proof-beyond-a-reasonable-
doubt standard to the facts in evidence. So when a criminal defendant challenges the
evidence's sufficiency, a reviewing court must examine the evidence in the light most
favorable to the prosecution and decide whether 'any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.' 'All that a
defendant is entitled to on a sufficiency challenge is for the court to make a "legal"
determination whether the evidence was strong enough to reach a jury at all.' [Citations
omitted.]" (Emphasis added.)
17
See also Griffin, 502 U.S. at 60 (holding the Fifth Amendment's Due Process Clause does
not require a general guilty verdict in multiple object conspiracy be set aside in a federal
prosecution if evidence is inadequate on one object).
This court applies harmless error in other situations that present jury unanimity
concerns as well. For example, as the State points out, this court applies harmless error
analysis in multiple acts cases. See De La Torre, 300 Kan. 591, Syl. ¶ 3 ("In a multiple
acts case . . . the appellate court must [] determine whether the error warrants reversal or
was harmless. The test for harmlessness when a unanimity instruction was not requested
or its absence not objected to is the clearly erroneous standard provided in K.S.A. 2013
Supp. 22-3414[3]."). We even apply a form of harmless error to an arguably more serious
situation—the omission of a crime's element from the jury instructions. See State v.
Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761 (2010) ("When a reviewing court
concludes beyond a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict would have been the
same absent the error, the erroneous instruction is properly found to be harmless."),
overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016).
Given all this, there simply is no excuse for treating alternative means issues as
something exceptional—even under due process. See Mott, 62 U. Kan. L. Rev. at 76
("[A]t its core, the problem Wright wants to solve is more a due process issue than a juror
unanimity issue because the issue persists unaltered, even if unanimity were not required
by our law. But remember, as a primary justification for the super sufficiency rule, due
process is problematic."). Once again, a course correction seems advisable to square how
we treat jury instruction problems across their spectrum.
Moving past Wright, we asked the parties to consider whether alternative means
error implicates the federal Sixth Amendment right to a unanimous verdict. See Ramos v.
18
Louisiana, 590 U.S. 83, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). Reynolds, of course,
seized the opportunity to assert the Sixth Amendment mandates unanimity in jury
verdicts in cases such as his. The State, just as predictably, contends Ramos simply
clarified the jury unanimity requirement for a general verdict and did not extend it to a
crime's means. We agree with the State.
In Ramos, a 10-to-2 jury verdict convicted the defendant of second-degree murder
as permitted by state law at the time, resulting in a life sentence without parole. The
defendant argued this violated his Sixth Amendment right because two jurors voted not
guilty. The United States Supreme Court agreed. It held the Sixth Amendment requires a
unanimous verdict to convict a defendant of a serious offense. Ramos, 590 U.S. at 87-93.
In holding as it does to require a general unanimous jury verdict to convict a
defendant of a serious offense, Ramos' spirit aligns with K.S.A. 22-3421's plain text
discussed above but Ramos' limitations are notable. See Edwards v. Vannoy, 593 U.S.
255, 265 n.1, 141 S. Ct. 1547, 209 L. Ed. 2d 651 (2021) ("Ramos does not apply to
defendants charged with petty offenses, which typically are offenses that carry a
maximum prison term of six months or less."). We hold Ramos does not support a
structural error remedy for an alternative means error in a jury instruction.
We also asked the parties to discuss whether alternative means error violates due
process or any other rights under the Kansas Constitution. Reynolds argued Kansas
Constitution Bill of Rights sections 5 (trial by jury) and 10 (rights of the accused in
prosecution) "guarantee unanimity, which necessarily includes super sufficiency in
alternative means cases to be effective." But State v. Voyles, 284 Kan. 239, 250, 160 P.3d
794 (2007), rejected that proposition, citing sections 5 and 10, and held: "the right to a
unanimous jury verdict in a Kansas court is not a federal constitutional right or a state
constitutional right, but rather a state statutory one." And Reynolds concedes Kansas' due
19
process is co-extensive with its federal counterparts, so we need not explore new legal
frontiers on that front either. See State v. Boysaw, 309 Kan. 526, 537, 439 P.3d 909(2019); Griffin, 502 U.S. at 59 (providing federal due process does not require setting
aside a unanimous verdict on multiple-object conspiracy even when insufficient evidence
supports one of the objects). The Boysaw court advised: "Any future challenge . . . based
on state constitutional provisions will need to explain why this court should depart from
its long history of coextensive analysis of rights under the two constitutions." 309 Kan. at
538. Reynolds offers no such explanation.
Finally, Reynolds asserts we should continue following Wright because it
"incentivizes prosecutors to provide clear articulate theories for a jury to consider." That
may have a grain of truth, but it ignores the statutorily imposed scheme prompting
defendants to object to proposed jury instructions "before the jury retires." K.S.A. 22-
3414(3). This "incentivizes" defendants as a matter of law to timely object, so the district
court has a chance to correct an error before it occurs, by setting a harder standard of
review if they do not. But that statutory encouragement evaporates under Wright, because
it perversely rewards a defendant's silence with automatic reversal when a proposed jury
instruction contains an alternative means problem. We see no reason to skirt the statute.
As for the dissent, it underscores the points made above by not engaging with any
depth or precision on the merits. To illustrate, it continues to superficially label Wilson,
Timley, and Wright as "precedent" without explaining why that is appropriate when those
cases did not involve alternative means error because sufficient evidence supported all
proffered means. At best, those cases offer only dicta about an unnecessary remedy,
while the cases not discussed by the dissent required a remedy but did not resort to
automatic reversal. See State v. Grissom, 251 Kan. 851, 893, 840 P.2d 1142 (1992), State
v. Dixon, 279 Kan. 563, 606, 112 P.3d 883 (2005), and State v. Cook, 286 Kan. 1098,
1108, 191 P.3d 294 (2008). Nor does the dissent attempt to reconcile its view with our
20
multiple acts caselaw, which does not require automatic reversal. See De La Torre, 300
Kan. 591. These are not minor analytical omissions.
After careful consideration, we overrule Wright and its progeny. There is no
justification for requiring automatic reversal and a new trial under circumstances like
those presented in Reynolds' case. We are convinced Wright was originally erroneous and
that more good than harm will come by departing from its singular approach to this type
of instructional error. See Sherman, 305 Kan. at 108. In its place, we adopt the analysis
contemplated by K.S.A. 22-3414(3) when a defendant asserts an alternative means
problem with a jury instruction.
Standard of review
For clarity, we restate the applicable test in context: If a defendant claims a jury
instruction contained an alternative means error, the reviewing court must consider
whether the instruction was both legally and factually appropriate. The court will use
unlimited review to determine whether the instruction was legally appropriate and will
view the evidence in the light most favorable to the requesting party when deciding
whether the instruction was factually appropriate. Upon finding error, the court will then
determine whether that error was harmless, using the test and degree of certainty set forth
in Plummer, 295 Kan. 156, and Ward, 292 Kan. 541.
Discussion
The district court instructed Reynolds' jury that an aggravated burglary conviction
would require the State prove as one of the elements: "The defendant entered into or
remained in a building or dwelling."
21
To decide whether this instruction was legally appropriate, we look to K.S.A. 2017
Supp. 21-5807(b) under which the State charged Reynolds, which sets out three locations
where an aggravated burglary may occur—a "[d]welling in which there is a human
being," a "building . . . which is not a dwelling in which there is a human being," or a
"means of conveyance . . . in which there is a human being." K.S.A. 2017 Supp. 21-
5807(b). And the instruction listed "building or dwelling" for the location element. This
fairly and accurately reflected the applicable statute. We also note the State may charge a
defendant with a crime that can be committed in more than one way. See Rucker, 309
Kan. at 1094. We hold the instruction was legally appropriate.
Moving to factual appropriateness, the uncontroverted evidence shows Reynolds
entered the unoccupied lower-level salon, went upstairs, and broke into the occupied
living quarters. The State half-heartedly suggests sufficient evidence established the
nondwelling building alternative because Reynolds entered and remained in the lower
level with intent to commit a felony. But that ignores a critical component—the statute
expressly criminalizes entering into or remaining within "a building . . . in which there is
a human being." (Emphasis added.) K.S.A. 2017 Supp. 21-5807(b)(2); see also State v.
Daws, 303 Kan. 303, 794, 368 P.3d 1074 (2016) (holding insufficient evidence supported
aggravated burglary conviction when defendant entered an empty dwelling, even though
someone arrived later while the defendant remained in the home).
We agree with Reynolds that nothing in the record can sustain an aggravated
burglary conviction for entry into a nondwelling building, even viewing the evidence in
the light most favorable to the State. No evidence supports that instructed means. We
hold listing this alternative means for the location element was factually inappropriate.
Turning to our final step of harmless error, we note Reynolds did not object to the
aggravated burglary instruction before the jury retired, so we must look for clear error.
22
See K.S.A. 22-3414(3). And that requires us to be firmly convinced the jury would have
reached a different verdict had this error not occurred. See State v. Williams, 295 Kan.
506, 516, 286 P.3d 195 (2012).
Reynolds contends if we are to apply any harmless error test, we should apply
constitutional harmless error under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17
L. Ed. 2d 705 (1967). But as we have explained, no constitutional right has been violated;
and even if it had, clear error still applies—just as it does for any other unpreserved jury
instruction issue under K.S.A. 22-3414(3). See, e.g., State v. Jarmon, 308 Kan. 241, 244,
419 P.3d 591 (2018) (applying clear error to an unobjected-to instruction that, had the
defendant objected, would be governed by constitutional harmless error).
Returning to our test, we have no reluctance concluding Reynolds' jury understood
all occupants were upstairs in the living area and found him guilty of aggravated burglary
of a dwelling. No evidence detracts from that single scenario, and we can rely on the jury
to apply the law to the only available evidence in reaching its verdict. See State v. Gray,
311 Kan. 164, Syl. ¶ 2, 459 P.3d 165 (2020) ("Kansas courts presume jury members
follow instructions . . . ."). We are not firmly convinced the outcome would have been
different without listing building as a possible location element. The aggravated burglary
instruction was not clearly erroneous.
AGGRAVATED BURGLARY: ALTERNATIVE MEANS
(THREE ITEMIZED FELONIES)
The district court instructed the jury that the State had to prove Reynolds entered
into or remained in a building or dwelling "with the intent to commit kidnapping,
aggravated assault or criminal threat therein." (Emphasis added.) In the Court of
Appeals, Reynolds argued the individually listed felonies described in the aggravated
23
burglary instruction created alternative means for intent—one for each felony. The panel
bypassed that argument by just assuming they were alternative means and held sufficient
evidence supported each. The State challenges this assumption, arguing the three felonies
were options within a means as defined by our caselaw. We consider next how our post-
Wright approach with alternative means instructions impacts the related matter of options
within a means.
The consequences for options within a means
Two years after Wright, the court in Brown distinguished "alternative means" from
"options within a means" for the first time. Brown, 295 Kan. at 188-200. There, the
defendant claimed jury instructions separating the charged offenses' elements with "or"
stated alternative means of committing the charged crimes. But the State argued this
statutory language should be treated as an "atypical alternative means case," no doubt
hoping to avoid Wright's rigid outcome. 295 Kan. at 189.
Rejecting the invitation to change course by overturning Wright, the Brown court
embraced a "no error" concept of "options within a means" borrowed from the
Washington Supreme Court. 295 Kan. at 196 (citing In re Jeffries, 110 Wash. 2d 326,
339-40, 752 P.2d 1338 [1988]). The Brown court held:
"The listing of alternative material elements, when the list is incorporated into an
elements instruction, creates an alternative means issue demanding super-sufficiency of
the evidence. But merely describing a material element or a factual circumstance that
would prove the crime does not create alternative means, even if the description is
included in a jury instruction." (Emphasis added.) 295 Kan. at 181, Syl. ¶ 7.
For "options within a means," the Brown court held Wright's super sufficiency was
not required. It noted a court must discern legislative intent to determine "if an 'or'
24
separates an option" that is or is not an alternative means. 295 Kan. at 193; see also 295
Kan. at 194 ("In examining legislative intent, a court must determine for each statute
what the legislature's use of a disjunctive 'or' is intended to accomplish. Is it to list
alternative distinct, material elements of a crime . . . ? Or is it to merely describe a
material element or a factual circumstance that would prove the crime?").
Under Brown, the key difference between alternative means and options within a
means is in their proof requirements. With alternative means, super sufficiency demands
the evidence establish each means presented to the jury to avoid reversal. With options
within a means, one option's lack of evidence does not automatically compel reversal.
See Brown, 295 Kan. at 198 ("Jury unanimity on options within a means—secondary
matters—is generally unnecessary; therefore, on appeal, a super-sufficiency issue will not
arise regarding whether there is sufficient evidence to support all options within a
means.").
At the outset, one might ponder the obvious question: How is it that our courts
would treat the conjunction "or" differently in terms of evidentiary proof in one
circumstance and not the other? See, e.g., Daws, 303 Kan. at 789 (aggravated burglary
case; "entering into or remaining within" is viewed as alternative means); State v.
Castleberry, 301 Kan. 170, 185, 339 P.3d 795 (2014) (fleeing a police officer under
K.S.A. 2009 Supp. 8-1568[b][1][C], [E]; "engaging in reckless driving or committing
five or more moving violations are 'options within means'"). This seems to invite the
same sort of speculation that Wright abhors. See State v. Jordan, 317 Kan. 628, 636, 537
P.3d 443 (2023) (suggesting a court speculates when addressing alternative means or
options within a means cases by stating: "a reviewing court looks to the relevant statute's
language and structure to decide whether the Legislature meant to list distinct alternatives
for an element of the crime" [emphasis added]); see also Moler, 316 Kan. at 571
("[W]hen a statute is plain and unambiguous, the appellate courts will not speculate as to
25
the legislative intent behind it."). The irony, of course, is that the Legislature did not
explicitly create options within a means as an analytical steppingstone—it is a judicially
crafted concept that simply limits Wright's fallout.
That question aside, since we have decided alternative means no longer requires
super sufficiency to avoid reversal, we hold there is no corresponding need to continue
distinguishing options within a means in a search for instructional error. In either
instance, the same test applies.
Discussion
To address Reynolds' claim, we must first decide whether the instruction was
legally appropriate. K.S.A. 2017 Supp. 21-5807(b) criminalizes entering into or
remaining within an enclosed space "with intent to commit a felony . . . therein." It does
not identify particular felonies triggering the crime, even though the district court listed
three in its instruction: kidnapping, aggravated assault, or criminal threat. Even so, all
three listed crimes are felonies, and the record shows the kidnapping instructions fairly
and accurately reflected the criminal elements of each. See K.S.A. 2017 Supp. 21-
5408(a)(3) (kidnapping is a severity level three, person felony); K.S.A. 2017 Supp. 21-
5412(b)(a) (aggravated assault is a severity level seven, person felony); K.S.A. 2017
Supp. 21-5415(a)(1) (criminal threat is a severity level nine, person felony). We hold the
aggravated burglary instruction was legally appropriate.
Moving to factual appropriateness, Reynolds argues insufficient evidence
supported the kidnapping and criminal threat felonies. He did not seek review of the
panel's holding that "ample evidence" supported his intent to commit an aggravated
assault, so we need not consider that one. See Reynolds, 2022 WL 2188164, at *8.
26
As to kidnapping, Reynolds points out the jury found him not guilty of the
separate kidnapping charge, along with its lesser included offenses, so he concludes no
evidence existed to justify including the kidnapping means with the aggravated burglary
instruction. In rejecting that assertion, the panel observed, "This court is merely charged
with determining if sufficient evidence exists such that a rational fact-finder could have
found Reynolds guilty of intent to kidnap . . . [,] not whether he was in fact found guilty
beyond a reasonable doubt." Reynolds, 2022 WL 2188164, at *8. We agree with the
panel and note an appellate court examines factual appropriateness by viewing the
evidence in the light most favorable to the requesting party.
For the criminal threat listing, Reynolds claims error because the panel reversed
his criminal threat conviction and argues the jury may have convicted him of aggravated
burglary based on the unconstitutional reckless disregard mens rea. See Reynolds, 2022
WL 2188164, at *1 (reversing the criminal threat conviction under State v. Boettger, 310
Kan. 800, 450 P.3d 805 [2019] [holding the reckless disregard portion of the criminal
threat statute unconstitutionally overbroad]). The panel did not directly address his
concern. Instead, it looked to whether sufficient evidence proved Reynolds intended to
commit criminal threat and held the record did so. Reynolds, 2022 WL 2188164, at *7-8.
Reynolds does not challenge that holding, he simply repeats his argument that the
aggravated burglary conviction must be reversed because the jury may have relied on
reckless criminal threat to find him guilty. He cites Leary v. United States, 395 U.S. 6,
31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), as support, noting the Supreme Court
wrote that "[i]t [h]as long been settled that when a case is submitted to the jury on
alternative theories the unconstitutionality of any of the theories requires that the
conviction be set aside." But Reynolds' argument fails because the instructions did not
give the jury the option to rely on reckless criminal threat as the underlying felony.
27
The instructions explained the State had to show Reynolds intended to commit one
of three underlying felonies. The jury could not have concluded Reynolds intended to
commit criminal threat recklessly because "a person cannot act both intentionally and
recklessly with respect to the same act. Rather, an act is either intended or not intended; it
cannot simultaneously be both. [Citation omitted.]" State v. O'Rear, 293 Kan. 892, 903,
270 P.3d 1127 (2012); see Griffin, 502 U.S. at 59 ("[J]urors are well equipped to analyze
the evidence.").
The panel appears to have acknowledged this. It stated: "[W]hile this court
reverses Reynolds' criminal threat conviction for the reasons explained above, there is
nevertheless sufficient evidence to support that Reynolds likewise had the intent to
commit intentional criminal threat when he entered into and remained within the house."
(Emphasis added.) Reynolds, 2022 WL 2188164, at *8. Reynolds does not discuss this in
his petition for review, and "[w]hen a party presents . . . no argument to support its
request for relief, an issue may be deemed abandoned." See State v. Evans, 313 Kan. 972,
993, 492 P.3d 418 (2021). Even so, the jury instruction required the State prove Reynolds
"threatened to commit violence and communicated the threat with the intent to place
another in fear," and the record shows he told the victims he was "going to kill everyone."
This strongly supports aggravated burglary's "intent to commit criminal threat" element.
We hold the aggravated burglary instruction, listing three felonies for the
alternative means to commit aggravated burglary, was legally and factually appropriate.
There was no error in giving that instruction.
THE AGGRAVATED BURGLARY CHARGING DOCUMENT
Generally, when a jury instruction describing the crime's elements adds statutory
elements not in the charging document, that instruction is overly broad and erroneous.
28
State v. Phillips, 312 Kan. 643, 668, 479 P.3d 176 (2021); see also State v. Hart, 297
Kan. 494, 508, 301 P.3d 1279 (2013). This is because a charging document specifically
sets out an alleged offense, so a defendant knows the nature of the accusation. This
principle serves two purposes: enabling the defendant to develop a defense and limiting
convictions to facts advanced in the accusation. Phillips, 312 Kan. at 668. For these
reasons, the State is bound by its charging document.
Reynolds claims the aggravated burglary instruction was too broad because it
included the dwelling element, which the original grand jury indictment did not expressly
identify. It charged him with entering into or remaining within "a building, motor vehicle,
or other means of conveyance," while the jury instruction listed "a building or dwelling"
for the location element. The panel avoided the merits and simply decided any error was
harmless using a clear error standard. It explained:
"Assuming, without deciding, that the aggravated burglary instruction was in fact
overbroad such as to constitute an error—Reynolds cannot show that the error was
clearly erroneous. This court is not firmly convinced that the jury would have reached a
different verdict had the jury instruction only included the word building and not the
word dwelling. There is no evidence that Reynolds suffered a '"trial by ambush"' based
on the inclusion of a description for the burgled structure in the jury instruction.
Accordingly, this court finds that even if the instruction were overbroad, it would not
require reversal under the clear error standard. [Citations omitted.]" Reynolds, 2022 WL
2188164, at *11.
Additional facts
The grand jury issued an indictment alleging aggravated burglary:
"COUNT 4
29
"AGGRAVATED BURGLARY
"K.S.A. 21-5807(b)
"Level 4, Person Felony
"On or about the 4th day of November, 2017 in the State of Kansas and County
of Shawnee, RYAN DAVID REYNOLDS, did, then and there, unlawfully, feloniously,
and without authority, enter into or remain within a building, motor vehicle, or other
means of conveyance, to-wit: 2225 NE 39th St., in which there is a human being, to-wit:
Kayla Reynolds and/or Lynzie Reynolds and/or E.R.R. xx/xx/15, with the intent to
commit a felony therein, contrary to the form of the statutes in such case made and
provided and against the peace and dignity of the State of Kansas." (Emphasis added.)
As readily seen, despite K.S.A. 2017 Supp. 21-5807(b) identifying a dwelling as
an enclosed space, the indictment did not explicitly mention it. But the aggravated
burglary instruction did, stating in pertinent part: "The defendant entered into or
remained in a building or dwelling." This same language appeared in Reynolds' own
proposed instruction, which he submitted well before trial.
Discussion
On review, the State reframes the issue as a charging document question because
the indictment's introductory language plainly alleging a level four, person felony can
only apply to a dwelling under K.S.A. 2017 Supp. 21-5807(b). The State's point is well
taken. The indictment specifying a level four, person felony, certainly weakens Reynolds'
prejudice claim—especially when he proposed a similar instruction and had ample time
to discover the mismatched elements. See State v. Dunn, 304 Kan. 773, 821, 375 P.3d
332 (2016) (holding the charging document error did not affect the defendant's
30
substantial rights because the defendant and his trial counsel understood exactly what the
State sought to prove on the charged crime).
This may explain why Reynolds makes little effort to show prejudice or even
explain why the jury would have reached a different conclusion with an instruction more
like the charging document. Instead, he just repeats his assertion the evidence does not
support he entered a "building in which there was a human," which we already discussed.
In Brown, the court explained:
"For attempted aggravated robbery, the State charged Brown with committing
'any overt act, to-wit: demanded drugs and cash, toward the perpetration of a crime, to-
wit: Aggravated Robbery.' The district court omitted 'to wit: demanded drugs and cash'
from the related jury instruction. Brown argues this instruction erroneously broadened the
crime charged to include any overt act.
"Generally, '[a] jury instruction on the elements of a crime that is broader than
the complaint charging the crime is erroneous.' Such error is excusable when the
defendant's substantial rights are not prejudiced. However, Brown does not explain
how—and the record does not suggest that—the discrepancy between the information
and the instruction deprived him of due process or impacted his substantial rights. For
example, Brown does not argue he was unfairly surprised at trial when the State
presented the theory that he served as wheelman instead of demanding drugs and cash.
Furthermore, the instruction accurately stated the law as applied to the facts in this case.
Therefore, we are not persuaded that this discrepancy—if error—amounts to reversible
error. [Citations omitted.]" Brown, 306 Kan. at 1165.
Because the instruction did not define a "building"—and Reynolds does not argue
the instruction was faulty for neglecting to provide that definition—he fails to firmly
convince us the jury would have reached a different result. And as the panel pointed out,
31
Reynolds could not have been surprised or "ambushed" by an instruction he proposed.
See State v. Hart, 297 Kan. at 510.
AGGRAVATED ENDANGERING A CHILD: JURY INSTRUCTION
The State charged Reynolds with aggravated endangering a child under K.S.A.
2017 Supp. 21-5601(b)(1), which criminalizes "[r]ecklessly causing or permitting a child
under the age of 18 years to be placed in a situation in which the child's life, body or
health is endangered." Reynolds argues "causing or permitting" creates two alternative
means of committing the crime and insufficient evidence supports that he permitted the
child to be in danger. The panel concluded these were not alternative means and even if
they were, sufficient evidence supported both. Reynolds, 2022 WL 2188164, at *9-10.
We agree there was no error.
Additional facts
At the instructions conference, Reynolds argued no evidence showed he permitted
the child to be placed in danger, so the instruction should have been limited to whether he
caused the child to be placed in danger. The district court agreed, but when it orally
instructed the jury on the charge, it said the State needed to prove "[t]he defendant
recklessly caused or permitted [the child] to be placed in a situation in which [the child]'s
life, body, or health was endangered." (Emphasis added.) Reynolds did not object. Later,
during the State's closing arguments, the court noted its mistake and told the prosecutor:
"[W]hen you get to [the aggravated child endangerment] instruction . . . , there was an
error in that one. I have a copy with the error in question."
When the prosecutor read the instruction for aggravated child endangerment, she
omitted the "permitted" language: "Instruction Number 20 is Count 9, Aggravated
32
Endangering a Child. And these elements that the State has to prove is that the defendant
recklessly caused [the child] to be placed in a situation in which [the child]'s life, body, or
health was in danger." The written instruction provided to the jury included only the
"causing" language, telling it that the State had to prove "[t]he defendant recklessly
caused [the child] to be placed in a situation in which [the child]'s life, body or health was
endangered."
Discussion
Considering the district court acknowledged its misstatement, the prosecutor read
the instruction without "permitted," and the written instruction omitted "permitted," it
seems clear the jury had only one alleged means before it. Indeed, Reynolds' attempt to
exploit what amounts to a slip of the tongue as an alternative means structural error
underscores the potential harm in preserving Wright. Even so, our caselaw suggests we
should continue the analysis. See Miller v. State, 298 Kan. 921, 933, 318 P.3d 155 (2014)
("[A] correct written instruction does not overcome defects in a trial court's oral
instructions because orally instructing the jury on applicable law is one of a trial court's
fundamental duties."). The issue is whether the district court's oral instruction was legally
and factually appropriate.
We hold the instruction was legally appropriate because the challenged phrase
"caused or permitted" fairly and accurately reflected the applicable statutory language,
"causing or permitting." See K.S.A. 2017 Supp. 21-5601(b)(1). And we hold it was
factually appropriate because, viewed in the light most favorable to the State, Reynolds
both caused and permitted his daughter to be placed in danger when he entered the
dwelling without authority, confined his daughter in the room, waved his gun around, and
declared he would kill everyone. See Black's Law Dictionary 275, 1376 (11th ed. 2019)
33
(defining "cause" as "[t]o bring about or effect" and "permit" as "to allow [something] to
happen").
Reynolds argues he did not "permit" the child to be placed in danger. He relies on
State v. Wilson, 267 Kan. 550, 987 P.2d 1060 (1999), in which the court defined "permit"
in this context as having "authority or control over either the child or the abuser and
permit[ting] a child under the age of 18 years to be placed in such a situation where the
child's life, body, or health may be injured or endangered." 267 Kan. at 568. But the
Wilson court defined "cause," as not requiring authority or control if the defendant
participated in "actively creating the injurious circumstances." 267 Kan. at 562.
To be sure, there is room to question Wilson's interpretation, but even its view
supports a conclusion that Reynolds permitted the incident. He created this dangerous
situation for his daughter and could have stopped himself. He controlled his own conduct,
causing the circumstances, and allowed them to continue.
We hold the district court's oral instruction was legally and factually appropriate.
No error occurred.
CUMULATIVE ERROR
We have determined the factually inappropriate jury instruction setting out the
aggravated burglary charge's location element as both a building and dwelling was not
clearly erroneous. We also concluded the overly broad, aggravated burglary instruction
was not clearly erroneous. In State v. Waldschmidt, 318 Kan. 633, 662, 546 P.3d 716(2024), we held an unpreserved instructional issue that is not clearly erroneous may not
be aggregated in a cumulative error analysis under K.S.A. 22-3414(3). There is no error
to accumulate here.
34
Judgment of the Court of Appeals affirming the district court is affirmed on the
issues subject to review. Judgment of the district court is affirmed on the issues subject to
review.
***
ROSEN, J., concurring in part and dissenting in part: I join most of the majority's
opinion. But I dissent from its decision to depart from our precedent in State v. Wilson,
220 Kan. 341, 552 P.2d 931 (1976), State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994),
and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). I would continue to reverse an
alternative means conviction when at least one of the means submitted to the jury lacked
sufficient supporting evidence and the jury did not indicate it unanimously relied on a
sufficiently supported theory of guilt.
Some crimes may be committed in more than one way. We call these "alternative
means" crimes. State v. Rucker, 309 Kan. 1090, 1094, 441 P.3d 1053 (2019). Courts may
permit juries to consider every means of a charged crime that was included in the
charging document when the jury considers a defendant's guilt. In 1976, we held that
individual jurors do not need to unanimously agree on which of those alternative means
the State proved in finding a defendant guilty. But we also held that, in the absence of
such unanimity, sufficient evidence must support every means. Wilson, 220 Kan. at 345.
Although we strayed from this "super-sufficiency" requirement in a few cases, we
confirmed it in 1994 and again in 2010. See Timley, 255 Kan. 289; Wright, 290 Kan. at
205.
In Wright, we expanded on the reasoning behind the super-sufficiency
requirement. We explained that it exists to ensure that "each juror's vote was supported
35
by a means for which there was sufficient evidence," or, in other words, that a jury
unanimously rested its verdict on a legally cognizable theory of guilt—even if it was not
unanimous on which theory. 290 Kan. at 205 (quoting Beier, Lurching Toward the Light:
Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 299 [2005]).
This is because, when the State inexplicably charges a means for which there is
insufficient or no supporting evidence and then successfully advocates for an instruction
on that means, some jurors may arrive at a guilty verdict by finding the State proved that
insufficiently supported means. Cf. State v. Daniels, 278 Kan. 53, 72, 91 P.3d 1147(2004) (duplicitous charging—including two separate offenses in single count—
"confuses the defendant as to how he or she must prepare a defense, and it confuses the
jury"). Those jury votes cannot stand. What remains is, at best, a non-unanimous finding
of guilt or, at worst, no finding of guilt. See State v. Green, 94 Wash. 2d 216, 232, 616
P.2d 628 (1980) (when there is sufficient evidence to support only one of two alternative
means, only the sufficiently supported means is "left" to support the conviction and it is
impossible "to know whether the jury deemed that [means] established in the absence of
some indication of jury unanimity"). Because of this possibility, the difficulty guessing
what a jury might have done, and the defendant's right to a unanimous general verdict,
we've held the State accountable for its slipshod approach to prosecution and reversed a
conviction when there was insufficient evidence to support at least one means offered to
the jury and there was no indication from the jury that it unanimously relied on a
sufficiently supported means.
Today, the majority rejects this line of precedent without addressing its underlying
reasoning. It observes that K.S.A. 22-3421 and the Sixth Amendment require only a
general unanimous guilty verdict and thus do not require that sufficient evidence support
every means submitted to a jury. The majority concludes an alternative means error
should therefore be reviewed under our instructional error paradigm, a shift that
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essentially paves the way for the State to charge and instruct on crimes for which there is
no evidence.
I agree, as does our precedent, that neither K.S.A. 22-3421 nor the Sixth
Amendment require super-sufficiency. The majority contends the Constitution requires
only a unanimous general verdict as to guilt. But what the majority ignores is the
possibility of a non-unanimous general verdict as to guilt when the jurors do not indicate
they were unanimous as to means and at least one of the means was not supported by
sufficient evidence. As I discussed, in that situation, some jurors' guilty votes may have
rested on a means for which there was insufficient evidence, and those votes cannot
stand. We are then left with less than a unanimous jury rendering a guilty verdict. This
surely violates any "general verdict" requirement. 319 Kan. at ___, slip op. at 13.
I find nothing in the State's briefing or the majority's opinion that convinces me we
do not face a jury unanimity concern under these circumstances. In the early portions of
the majority's opinion, it seems to acknowledge the concern is there. But it quickly swats
it away by rhetorically asking "why can't we employ harmless error to conclude the jury
unanimously convicted [the defendant] on the only means for which there was [sufficient
evidence]?" 319 Kan. at ___, slip op. at 9.
To this, I answer that the State has failed to meet its burden to show that we should
depart from our precedent treating the potential deprivation of general jury unanimity as a
structural error. Neither the State nor the majority offers any discussion of the nature of
structural error or why this is not one. Cf. State v. Ramos, 367 Or. 292, 299-319, 478 P.3d
515 (2020) (providing lengthy analysis of whether jury unanimity error under Sixth
Amendment is structural error or amenable to harmless error review). At the very least,
because this error implicates Sixth Amendment rights, the majority should review for no
less than constitutional harmless error. See United States v. Litwin, 972 F.3d 1155, 1178
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(9th Cir. 2020) (holding that if jury unanimity error under the Sixth Amendment is
subject to harmlessness review, constitutional harmless error standard applies); Ramos,
367 Or. at 319-20 (holding that instruction errors implicating Sixth Amendment right to
jury unanimity are subject to constitutional harmless error standard).
The United States Supreme Court has offered no ruling on whether the Sixth
Amendment requires jury members to unanimously rest their guilty verdicts on a legally
cognizable theory of guilt and whether errors casting doubt on that unanimity are subject
to automatic reversal. In the absence of such a ruling, the State holds the burden to
convince this court our decisions imposing such a requirement were error. Because I
believe the State has failed to carry that burden, I would reverse Reynolds' conviction for
aggravated burglary.
LUCKERT, C.J., joins the foregoing concurring and dissenting opinion.
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