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

Ward, J.,

dissenting: I respectfully dissent from the majority’s conclusion that aiding and abetting is an alternative means of committing a crime. The aiding and abetting statute, K.S.A. 21-3205(1), does not fit within the currently recognized definition or view of alternative means. And the century or more of Kansas law regarding aiding and abetting does not support a requirement that juries or appellate courts determine whether defendants acted as principals or as aiders and abettors.

The foundation of the alternative means rule, the requirement of jury unanimity as to the means by which a crime was committed, comes from our Supreme Court’s interpretation of the Kansas criminal verdict statute, K.S.A. 22-3421. See State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). Verdict unanimity in criminal cases is not based in either the Kansas or the United States Constitution. Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 277 (2005). Our courts have stressed that point of law several times recently. See State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007) (“[T]he right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a statutory one.”); State v. Schreiner, 46 Kan. App. 2d 778, 791, 264 P.3d 1033 (2011) (“First, jury unanimity in criminal cases is a statutory right rather than a fundamental constitutional right.”), petition for review filed December 5, 2011.

Because jury unanimity is not a fundamental constitutional right, the appellate courts may extend alternative means protection into the arena of aiding and abetting only by interpreting K.S.A. 21-3205(1) as establishing alternative means of committing a crime. This statute reads as follows:

“A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”

Our court has noted that K.S.A. 21-3205(1) does not itself define or establish a crime. Rather, it is a statute which “explains the circumstances under which a person may be criminally responsible for a crime committed by another person.” State v. Johnson, 46 Kan. App. 2d 870, 885, 265 P.3d 585 (2011). Similarly, the United States Tenth Circuit Court of Appeals interpreted the federal aiding and abetting statute, 18 U.S.C. § 2 (1994), as not establishing an independent crime, but rather as abolishing the common-law distinction between principals and accessories to a crime. United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996).

This court has said: “Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense.” (Emphasis added.) Schreiner, 46 Kan. App. 2d at 781. The means of a crime are its elements. Because K.S.A. 21-3205(1) does not define a crime, it contains no elements. Fundamentally and logically then, a statute that defines no crime and has no elements cannot establish alternative means of committing a crime.

A different panel of this court has previously ruled that aiding and abetting is an alternative means of committing a crime. See State v. Boyd, 46 Kan. App. 2d 945, Syl. ¶ 5, 268 P.3d 1210 (2011), petition for review filed January 23, 2012, cross-petition for review filed February 6, 2012. In doing so, that court acknowledged that aiding and abetting is not a distinct means of committing one particular crime, but it referred to aiding and abetting as a “means common to all” substantive crimes. 46 Kan. App. 2d at 953. In finding aiding and abetting to be an alternative means of committing a crime, that court discussed the danger highlighted in Wright regarding lack of jury unanimity; found the potential of such danger in aiding and abetting cases; and concluded that aiding and abetting must be recognized as an alternative means so as to avoid such danger. 46 Kan. App. 2d at 953-54.

In the continuing effort of our courts to comply with Wright and thus ensure jury unanimity as to the means by which crimes are committed, we should not lose sight of what an alternative means case really is. Alternative means cases are those “where a single offense may be committed in more than one way.” State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 (1994). The fact that more than one person participates in a crime does not mean that the crime was committed in more than one way. Alternative means do not arise simply from participation in a crime by multiple defendants and the giving of the aiding and abetting instruction at trial. Rather, alternative means arise from the serial list of terms found within our substantive criminal statutes; from the way in which crimes are charged by tire State; and from the wording used by trial courts in the elements instructions to the jury. We learn nothing about the means by which a crime was committed by attempting to discern among the several defendants who was the principal and who was the aider and abettor.

Furthermore, the long history of Kansas law on this subject does not support tire conclusion that aiding and abetting is an alternative means of committing a crime. Early on, our Supreme Court stated: “The one acting, the one present, aiding and abetting, and tire one absent, counseling, aiding and abetting, are declared to be equally and alike guilty.” State v. Cassady, 12 Kan. 550, 556, 1874 WL 666 (1874). That decision interpreted the aiding and abetting statute in effect at that time, which read: “Any person who counsels, aids, or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal.” G.S. 1868, ch. 82, sec. 115, p. 839 (Code Crim. Proc. §115). See Cassady, 12 Kan. at 555-56.

In the century or more since Cassady, the basic precepts of aiding and abetting law in Kansas have remained constant. The statute has not significantly changed, and our Supreme Court continues to interpret the aiding and abetting statute in much tire same way the court did over a century ago. See State v. Griffin, 279 Kan. 634, Syl. ¶ 10, 112 P.3d 862 (2005) (“All participants in a crime are equally guilty of that crime and any other reasonably foreseeable crime committed in carrying out the intended crime.”); State v. Scott, 250 Kan. 350, Syl. ¶ 7, 827 P.2d 733 (1992) (“A person who, either before or during the commission of a crime, intentionally aids, abets, advises, or counsels another to commit a crime with intent to promote or to assist in its commission is criminally responsible for the crime committed regardless of the extent of the person’s participation, if any, in the actual commission of the crime.”); State v. Payton, 229 Kan. 106, Syl. ¶ 1, 622 P.2d 651(1981) (“All participants in a crime are equally guilty without regard to the extent of their participation.”).

Because all participants in a crime are equally guilty without regard to the extent of their participation, prosecutors have generally not bothered to distinguish between principals and aiders and abettors in charging codefendant cases. The defendant maybe charged as dre principal or as the aider and abettor. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (“A person who aids and abets in committing the crime may be charged as a principal or as an aider and abettor.”); State v. Maxwell, 234 Kan. 393, Syl. ¶ 6, 672 P.2d 590 (1983) (“It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids, or abets in tire commission of an offense may be charged, tried and convicted in the same manner as though he were a principal.’’).

And although Kansas juries are typically instructed as to the law of aiding and abetting in codefendant cases, juries have not been asked to distinguish between a person’s guilt as an aider and abettor as opposed to guilt as the principal. That distinction has not mattered to the guilt of the defendant. In discussing the enactment in 1969 of K.S.A. 21-3205, the Kansas Judicial Council Advisory Committee on Criminal Law commented:

“This is intended to supersede K.S.A. 21-105, relating to principals in the second degree and accessories before tire fact. There seems to be no reason to speak in terms of principals in the first and second degrees and accessories before the fact where all are liable to the same extent.” 10 Vernon’s Kansas Stat. Annot., Crim. Code § 21-3205, Adv. Comm. Comment, p. 183 (1971).

All that has historically mattered is that the State proves each element of the crime and the defendant on trial played a willing role in the commission or furtherance of the crime as either the principal or as the aider and abettor. To be guilty under the theory of aiding and abetting, a defendant “must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.” State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 (1974).

A reasonable interpretation of the evidence in this case is that Cato-Perry was both the principal and the aider and abettor, but as to different elements of the crime. Here, as in many codefendant cases, there was a division of responsibility between the assailants. Cato-Periy was the muscle, and his unidentified coassailant was the thief. Cato-Perry was the principal as to the element of force or threat of bodily harm, and the other assailant was the principal as to the taking of property from the person or presence of Uzza-man. They aided each other as to the elements for which they were not the principal actor. Between them, their conduct satisfied all elements of the crime of aggravated robbery. Such is the essence of accomplice liability.

Having concluded that aiding and abetting is an alternative means, the majority here has necessarily engaged in a sufficiency of the evidence analysis. In doing so, the majority has found the evidence to be lacking that Cato-Perry acted as the principal in this crime, and it has ordered a new trial. And this is the outcome in a case where the evidence plainly establishes that on June 25, 2007, in Wichita, two men acting in concert committed each and every element of the crime of aggravated robbery.

The majority’s decision here, and the decision in Boyd, portend significant problems for the State in codefendant cases. As we have seen in this case, the specific actions of a codefendant do not always qualify the defendant as both the principal and aider and abettor. Given the division of responsibility that typically occurs in code-fendant cases, it may be the rare case where the evidence will be sufficient to satisfy participation under both theories of liability. And yet, that is precisely what juries or appellate courts will now be required to analyze and determine in codefendant cases.

Before we extend the analytical structure of alternative means into the realm of aiding and abetting, we must inteipret K.S.A. 21-3205(1) as compelling such a result. For over a century, our courts have not construed the aiding and abetting statute or its predecessor statutes to require verdict discernment between principals and aiders and abettors. The committee that drafted the current version of the aiding and abetting statute for enactment in 1969 saw no reason to discern between principals and accessories to a crime, as both were treated and punished the same. I do not believe Tim-ley and Wright support or compel any different interpretation of the aiding and abetting statute at the present time.