State v. Boyd

268 P.3d 1210, 46 Kan. App. 2d 945
Court of Appeals of Kansas·Decided December 23, 2011·No. No. 104,282·Published·Cited by 15 cases

Opinion

Atcheson, J.:

A Johnson County jury convicted Herman Kerwin Boyd IV of robbing a Sonic drive-in restaurant. Because Boyd held up the place with a cohort in crime, he was charged with aggravated robbery and aggravated assault both as a principal and as an aider and abettor. The case was submitted to the jury that way, prompting Boyd to burrow deep into the developing law of alternative means in hopes of finding an escape route on appeal. He primarily argues that aiding and abetting, as a basis for imposing criminal liability, amounts to an alternative means to acting as a principal. We agree. But on the facts, Boyd loses. There is sufficient evidence to support his conviction for aggravated robbery as both a principal and an aider and abettor. And because Boyd’s partner wielded a deadly weapon, the aggravated assault was foreseeable criminal conduct during the course of the robbery, providing an independent ground to uphold that conviction. We also consider and turn aside Boyd’s additional alternative means arguments and a challenge to his sentence.

Facts and Procedural History

During the evening of December 5,2005, Boyd and Christopher Shivers went into a Sonic restaurant in Shawnee, Kansas. They entered with robbeiy rather than burgers on their minds. Shivers immediately fired a handgun and demanded the manager appear front and center. Ryan Greene came to the front of the store where he joined fellow employees Jennifer Thompson and Christina Os-bum. Brandon Greene, Ryan’s brother, was working in the grill area and tried to sneak out the back when the commotion erupted. Shivers intercepted him, and using the gun to emphasize the point [947] that escape wasn’t acceptable behavior, he shepherded Ryan toward the front of the store.

Shivers then brandished the gun and demanded Ryan Greene turn over the money. Ryan Greene opened the cash register. According to Thompson, Boyd then “pretty much pushed [Ryan] out of the way” and took the money. Shivers told Ryan Greene to open the safe. He complied. Thompson recalled Boyd urging Shivers to hurry up with the safe. Boyd then grabbed a plastic container out of the safe.

Shivers demanded the paper money Thompson and Osbum had in their aprons. Boyd, however, instmcted Shivers to leave the coin changer Thompson carried, saying, “No, we don’t need that.” Thompson testified that Boyd actually took the money from her. Boyd and Shivers then left the restaurant.

Security cameras captured much of the robbery and the images showed Boyd. The police released surveillance photos to the media the next day, and a tipster called in to identify Boyd. After the police arrested Boyd, he admitted being with Shivers at the Sonic restaurant. The Johnson County district attorney charged Boyd with three counts of aggravated robbery for taking property from Ryan Greene, Thompson, and Osbum and one count of aggravated assault of Brandon Greene. At trial, Boyd testified in his own defense. He told the jury he went into the Sonic restaurant with Shivers and helped in the robbery because he was fearful that Shivers would have shot him had he refused. Boyd’s version, if the jury were to believe it, supported a defense of compulsion. See K.S.A. 21-3209.

The trial judge instmcted the jury that Boyd could be found guilty of the aggravated robberies either as an aider and abettor or as a principal. The instruction related to the robbery of Ryan Greene omitted a portion of the aiding and abetting language. Nobody has complained about the omission on appeal, and we find it immaterial to the disposition of the issues presented to us. The trial judge instmcted the jury on principal and aider and abettor liability on the aggravated assault count. The instructions included an explanation of aider and abettor liability under K.S.A. 21-3205(1). And they explained that a person committing a crime could be held [948] liable for any other foreseeable crime occurring during the course of that offense, as provided in K.S.A. 21-3205(2). The trial judge instructed on Boyd’s compulsion defense. On appeal, Boyd lodges no complaint about the juiy instructions.

The jurors apparently found the compulsion defense underwhelming. They convicted Boyd of the aggravated robberies and the aggravated assault. Boyd’s criminal history placed him in the highest category on the sentencing grid. The trial judge sentenced Boyd to 233 months in prison on the aggravated robbery of Ryan Greene, reflecting a standard sentence. He imposed sentences of 59 months in prison on the remaining aggravated robbeiy convictions and 12 months in prison on the aggravated assault conviction. All of those sentences were concurrent to the 233-month sentence. Boyd has timely appealed.

Alternative Means Challenges

General Principles

In State v. Schreiner, 46 Kan. App. 2d 778, 782, 264 P.3d 1033 (2011), this court recently laid out the ramifications of submitting alternative means of committing a crime to a jury and tire potentially seismic consequences when the evidence fails to support one of those means. We stated:

“When a statute establishes alternative means of committing a crime, the State must present evidence sufficient to support each means submitted to the jurors in the instructions. All of the jurors must be convinced beyond a reasonable doubt the defendant committed the offense. But the jurors need not agree on which of the alternative means has been proven. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). A general verdict of conviction is legally proper so long as the record contains sufficient evidence to support each means. See Wright, 290 Kan. 194, Syl. ¶ 2; State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007). Should evidence be lacking on one of the means, however, then a guilty verdict fails for insufficient evidence even though there may be overwhelming evidence supporting the other means. See Wright, 290 Kan. at 204-06.” Schreiner, 46 Kan. App. 2d at 782.

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State v. Boyd, 268 P.3d 1210, 46 Kan. App. 2d 945 (kanctapp 2011).

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