Per Curiam:
Roger Shaw appeals his conviction of involuntary manslaughter while driving under the influence of alcohol. For the first time on appeal, Shaw argues that we must reverse his conviction because the district court instructed the jury on multiple alternative means of committing the crime and the State failed to present sufficient evidence of each alternative means. In addition, Shaw contends that the district court violated his constitutional rights by sentencing him based in part on his criminal history without first requiring that the criminal history be alleged in the complaint and proven beyond a reasonable doubt to a jury. We agree with Shaw that involuntary manslaughter while driving under the influence of alcohol is an alternative means crime. We also agree with Shaw that the State failed to present substantial evidence of at least one of the alternative means of committing the crime. Accordingly, we reverse Shaw’s conviction and remand for a new trial.
The tragic events of this case unfolded on a Sunday afternoon, July 19, 2009. Adam and Aaron Kichler were brothers and spent a lot of time together, often riding their motorcycles. At approximately 2:45 p.m., Adam and Aaron left their parents’ home in Ottawa to ride their motorcycles to Wellsvifle and then on to Kansas City to see a movie. Adam later testified that they were not in a hurry and they did not exceed the speed limit on the county road, which was 55 miles per hour. The two young meii rode staggered; Aaron rode in front near the center line, and Adam rode approximately 12 to 15 feet behind him near the fog line by the shoulder of the road. The brothers drove eastbound on Shawnee Road toward Wellsvifle.
Meanwhile, Roger Shaw and Dennis Ameigh were traveling back to Shaw’s house from a trip to buy car parts; Shaw was driving his truck westbound on Shawnee Road. Adam testified that when [996]*996he and Aaron were a quarter mile from the intersection of Shawnee Road and Texas Road, he saw a red truck coming in the opposite lane; the truck had slowed down to a “slow roll.” Adam testified that as they came upon the truck, he “saw the front end of the truck lift up,” meaning that the driver was sharply accelerating and beginning to turn left in front of the approaching motorcycles. Adam testified that he saw the truck’s wheels turn and he heard Aaron yell. Aaron’s motorcycle hit the truck. Adam locked his brakes and turned to the left, avoiding the truck by an inch or two.
Shanta Kemp, who lived nearby, was driving home, saw the aftermath of the collision, stopped, and called 911. During her 911 call, Kemp informed the dispatcher that she could smell alcohol on Shaw’s breath. Emergency services personnel were dispatched to the scene and pronounced Aaron dead at the scene.
Joanna Buchom, an emergency medical technician who treated Shaw at the scene, later testified that Shaw told her that he had consumed “a couple of beers” prior to the accident and repeatedly told her that he had not seen the motorcycles. Kyle Lasswell, who was employed by the Wellsville Police Department and had been dispatched to the collision, later testified that he and Adam saw an empty beer box on the ground by Shaw’s truck. Franklin County Sheriff s Deputy Carl Bentley testified that when he talked with Shaw at the scene, he smelled a faint odor of alcohol coming from Shaw and that Shaw admitted to drinking three beers that day. According to Bentley, Shaw told him that the sun was in his eyes as he made the left turn from Shawnee Road onto Texas Road and he could not see the motorcycles. At the request of law enforcement, Buchom obtained a blood sample from Shaw at 3:42 p.m. The blood sample tested at a .11 blood alcohol level, above the legal limit of .08.
On November 19,2009, the State charged Shaw with involuntary manslaughter while driving under the influence of alcohol or dmgs, in violation of K.S.A. 21-3442. The jury trial occurred October 4-8, 2010. The main point of contention at trial was the identification of the direct cause of the collision and, therefore, Aaron’s death. The State argued that Shaw’s intoxication was the cause of the collision, while Shaw contended that Aaron had been speeding. [997]*997The State presented testimony from Emily Wood, the 911 dispatcher who received Kemp’s call, which included the information that Kemp could smell alcohol on Shaw’s breath. Kemp also testified for the State. In addition to stating that she smelled alcohol on Shaw’s breath, Kemp testified that when she had seen the motorcycles drive by a few minutes prior to the collision, she did not believe they were speeding. Buchom also testified about Shaw’s admission that he had consumed “a couple of beers” prior to the accident. Adam Kichler testified as to the events of the day and specifically stated that neither he nor Aaron was speeding.
The State also offered testimony from law enforcement officials including Lasswell, Bentley, and Franklin County Sheriff s Deputy Brian Ferguson, who photographed the scene and took measurements. Franklin County Sheriff Jeffrey Curry, who at the time of the collision was a patrol sergeant, also testified for the State. Curry had conducted a speed analysis on Adam’s motorcycle primarily by considering the length and direction of the skid marks. Curry determined that Adam was going 41-47 miles per hour at the point he locked up his rear brake. Because Adam and Aaron were traveling together, Curry stated it was reasonable to assume they were going the same speed and he had no reason to believe Aaron was driving faster than the posted speed limit of 55 miles per hour. In addition, each law enforcement officer testified that, at mid-afternoon on the day in question, the sun did not detrimentally affect his vision while driving to the scene of the collision.
The State also called Dr. Christopher Long, who had analyzed bodily fluids taken from Aaron and testified that the tests showed that sometime in the 20 hours prior to the accident, Aaron had taken hydrocodone and Tylenol, but that the levels present would not have caused impairment. Dr. Joel Kavan, a family physician, testified that he had treated Aaron on July 8, 2009, and prescribed hydrocodone and an anti-nausea medication for Aaron’s back pain.
Next, the State presented the testimony of Andy Buck, a senior field claims adjuster for Farm Bureau Life Insurance Services assigned to investigate the collision. Buck interviewed Shaw as part of his investigation. Buck testified that Shaw told him that he had consumed two and one-half beers over a 3-hour period on July 19, [998]*9982009. Shaw told Buck that prior to the collision, he had seen the motorcycles traveling toward him but after he began his turn, he looked up and the motorcycles were “right there.” Shaw told Buck that he believed the motorcyclists were racing and that Aaron could have avoided hitting his truck.
Dr. Erik Mitchell, the forensic pathologist who performed the autopsy on Aaron, testified about Aaron’s extensive injuries, both internal and external, and that the injuries were consistent with direct impact with a vehicle. Jennifer Agee, a forensic toxicologist with the Kansas Bureau of Investigation, testified that she had analyzed Shaw’s blood sample and found .11 grams of ethyl alcohol per 100 milliliters of blood, which is above the legal limit in Kansas of .08.
Finally, the State presented the testimony of Robert McKinzie, an accident reconstruction specialist, who had performed a reconstruction of the collision. McKinzie based his analysis on an examination of the sheriffs department file, photographs of the crash site, a visit to the crash site, information from witnesses, and a transcript. In McKinzie’s opinion, the sun was not a factor in the collision, nor was the weather or the layout of the road. McKinzie also analyzed the speed of Adam’s motorcycle and determined that Adam — and by implication Aaron — had been traveling 52 or 53 miles per hour at the time of the accident.
Shaw presented the testimony of four witnesses, but he made no attempt to dispute the State’s evidence that he had been drinking prior to the accident and that his blood alcohol content was above the legal limit. Shaw recalled Ferguson to answer a question about the geography around the intersection, and he also called the tow truck operator who removed the vehicles from the scene.
Next, Shaw called Ameigh, his passenger at the time of the collision. Ameigh testified that, on the day in question, he and Shaw were traveling back from Gardner, where they had gone to buy parts for the car they were repairing. Ameigh further testified that Shaw was not speeding as they approached the turn from Shawnee Road onto Texas Road and that he slowed to make the turn, made a steady turn, and did not accelerate sharply. Ameigh stated that as they were preparing to turn, he saw the lights of two motorcycles [999]*999at the top of a nearby hill; he thought they were at least a quarter of a mile away. Ameigh did not think the motorcycles were coming very quickly or that they were racing; he glanced away for a few seconds and, when he looked back up, he saw a motorcycle sliding toward the truck.
Shaw’s final witness was John Glennon, a forensic automotive technologist and full-time accident reconstructionist. Glennon read the police reports, reviewed photographs of the scene, and read Curry’s reconstruction report. He also visited the crash site, but not until March 2010. Glennon determined that Shaw’s truck moved south and east after the collision and was pushed by the motorcycle. He concluded that the minimum impact speed of Aaron’s motorcycle was 84 miles per hour. In his report, Glennon approximated Aaron’s speed at 92 miles per hour. After Glennon’s testimony, Shaw rested his case.
In closing arguments, both parties focused on the estimated speed at which Aaron was driving immediately prior to the collision. The State emphasized its contention that Aaron and Adam were not speeding and that Shaw was intoxicated to the point of being incapable of safely driving. Shaw, on tire other hand, argued that Aaron and Adam were speeding and challenged the State’s witnesses’ calculations that placed the speed of the motorcycles below the speed limit. Shaw’s counsel put it bluntly: “The cause of this collision was high speed.”
The jury deliberated approximately 2 hours, and there were no questions from the jury or requests for the read-back of any testimony. The jury found Shaw guilty of involuntary manslaughter while driving under the influence of alcohol to a degree that rendered him incapable of safely driving. At sentencing, Shaw did not object to his criminal history, which included three prior convictions of driving under the influence of alcohol (DUI). The district court sentenced Shaw to 120 months’ imprisonment. Shaw timely appealed his conviction and sentence.
For the first time on appeal, Shaw argues that we must reverse his conviction of involuntary manslaughter while driving under the influence of alcohol because the district court instructed the jury on alternative means of committing the crime and the State failed [1000]*1000to present sufficient evidence of each alternative means. Shaw also contends that the district court violated his constitutional rights by sentencing him based in part on his criminal history without first requiring that the criminal history be alleged in the complaint and proven beyond a reasonable doubt to a juiy. The State argues that the jury was presented with sufficient evidence to convict Shaw of involuntary manslaughter while driving under the influence of alcohol. The State further argues that the district court correctly sentenced Shaw.
Both parties agree that when the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all 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.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). The State also argues that because Shaw did not make any substantive objection to the jury instruction setting forth the elements of the crime including the alternative means of committing the crime, we should review whether die jury instruction was clearly erroneous. See K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have returned a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
Shaw’s primary contention is that this is an alternative means case and the State failed to present sufficient evidence of each alternative means of committing involuntary manslaughter while driving under the influence of alcohol. Although Shaw did not raise this argument below, this court has previously held that an alternative means error can be raised for the first time on appeal. See State v. Waldrup, 46 Kan. App. 2d 656, 663, 263 P.3d 867 (2011) (alternative means challenge can be raised for the first time on appeal because it implicates insufficiency of evidence to support the conviction), petition for rev. filed November 16, 2011; State v. Rivera, 42 Kan. App. 2d 914, 918, 218 P.3d 457 (2009) (stating that a criminal defendant need not challenge the sufficiency of the [1001]*1001evidence before the district court to preserve the issue for appeal), rev. denied 290 Kan. 1102 (2010).
Our Supreme Court has stated the following rule of law governing alternative means cases in Kansas:
“ ‘ “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.]” ’ ” State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010) (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]).
Shaw was convicted of violating K.S.A. 21-3442, which provides: “Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.” K.S.A. 8-1567(a)(3) prohibits a person from operating or attempting to operate a vehicle while under the influence of alcohol to a degree that renders the person incapable of safely driving the vehicle. The statute also prohibits a person from operating or attempting to operate a vehicle while the alcohol concentration in the person’s blood or breath is .08 or more. See K.S.A. 8-1567(a)(l) and (2). Shaw was charged with a complaint that mirrored the statutory language.
At trial, the district court instructed the jury as follows:
“The defendant is charged with the crime of involuntary manslaughter while driving under the influence of alcohol. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Aaron Kichler;
“2. That it was done in the commission of, while attempting to commit, or while in flight from committing or attempting to commit the act of operating any vehicle in this state
(a) While under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and/or
(b) While having an alcohol concentration of .08 or more as measured within two hours of the time of operating or attempting to operate the vehicle; and
[1002]*1002“3. That this act occurred on or about the 19th day of July, 2009, in Franklin County, Kansas.
“The phrase ‘alcohol concentration’ means the number of grams of alcohol per 100 milliliters of blood.
“The fault or lack of fault of Aaron Kichler is a circumstance to be considered along with all die other evidence to determine whether the defendant’s conduct was or was not the direct cause of Aaron Kichler’s death.”
The only objection Shaw raised to the jury instruction was that the last sentence should be given in the form of a separate instruction. Shaw raised no objection to the second claim or element of the crime as instructed by the juiy, and, in fact, there was no discussion between the district judge and counsel about the language of the second claim or element of the crime during the jury instruction conference.
On appeal, Shaw argues that this instruction contained alternative means of committing the crime, allowing the jury to find Shaw guilty of involuntary manslaughter if he unintentionally killed Aaron committed in the (1) commission of, (2) attempt to commit, or (3) flight from a DUI. Shaw does not argue that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in the commission of DUI. But Shaw argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in an attempt to commit DUI. Shaw also argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in flight from a DUI.
We must first determine whether involuntary manslaughter while driving under the influence of alcohol in violation of K.S.A. 21-3442 is an alternative means crime. We do so by examining the statutory definition of the crime. 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).
The legislature has not statutorily defined an alternative means crime, nor specified which crimes are alternative means crimes. This is left to judicial determination. This court has adopted the following definition:
“Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. [1003]*1003When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. Such statutes do not create alternative means.” State v. Schreiner, 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011.
Under the plain language of K.S.A. 21-3442, there are three alternative means to commit the crime of involuntary manslaughter while driving under the influence of alcohol: the unintentional killing of a human being committed in the (1) commission of, (2) attempt to commit, or (3) flight from an act described in K.S.A. 8-1567 and amendments thereto. The State does not deny that this is an alternative means case.
Next, we must consider whether the State presented substantial evidence to prove each alternative means. See Wright, 290 Kan. at 202. As previously stated, Shaw does not argue that the State presented insufficient evidence of involuntary manslaughter committed in the commission of DUI. But Shaw argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in an attempt to commit DUI. Shaw notes that in State v. Stevens, 285 Kan. 307, 314-19, 172 P.3d 570 (2007), the Kansas Supreme Court held that under K.S.A. 2006 Supp. 8-1567, operating and attempting to operate a vehicle present alternative means to commit the crime of DUI. The Stevens court went on to determine that there was sufficient evidence to support each alternative means under the facts of the case. 285 Kan. at 316-19.
The State argues that, because it presented sufficient evidence to find Shaw guilty of unintentionally killing Aaron while committing the act of DUI, it necessarily presented sufficient evidence to find him guilty of unintentionally killing Aaron while attempting to commit the act of DUI. The State relies on State v. Perkins, 46 Kan. App. 2d 121, 257 P.3d 1283 (2011), rev. granted December 19, 2011, argued April 11, 2012. In Perkins, the defendant was convicted under K.S.A. 2008 Supp. 8-1567 for operating or attempting to operate a vehicle while under the influence of alcohol. On appeal, the defendant argued that there was insufficient evi[1004]*1004dence to support each alternative means of committing the crime. The defendant noted that K.S.A. 21-3301 defines attempt as “ ‘any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime/ ” 46 Kan. App. 2d at 124. The defendant argued that there was no evidence in his case that he attempted but failed to commit the crime of DUI.
Acknowledging the decision in Stevens, this court found that operating or attempting to operate a vehicle while under the influence of alcohol created alternative means of committing the crime. 46 Kan. App. 2d at 122-23. But this court rejected the defendant’s application of K.S.A. 21-3301 to define attempt as that term is used under K.S.A. 8-1567. This court noted that under the DUI statute, an attempt is “treated as the legal equivalent of the completed offense and carries the same punishment,” while the criminal attempt statute codifies a type of crime different and separate from a completed offense. 46 Kan. App. 2d at 124-25. This court further noted that while criminal attempt requires that the perpetrator intend to commit the crime, the DUI statute requires no such intent. This court found that the DUI statute’s specific mention of attempt controls over the more general application of the criminal attempt statute. 46 Kan. App. 2d at 126-27. This court concluded that “[f]or purposes of K.S.A. 2008 Supp. 8-1567, then, a driver who actually operates a vehicle necessarily also attempts (successfully) to do so,” although “[t]he converse would not necessarily be true.” 46 Kan. App. 2d at 127.
We agree with the rationale expressed in Perkins. Thus, it is unnecessaiy for this court to search for evidence in the record that Shaw attempted to commit a DUI but failed to do so. Following the Perkins rationale, by presenting substantial evidence that Shaw committed involuntary manslaughter during the commission of DUI, we conclude the State necessarily presented substantial evidence that Shaw committed involuntary manslaughter during the attempted commission of DUI. However, we acknowledge that Perkins is under review by our Supreme Court.
[1005]*1005Next, Shaw argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in flight from a DUI. As Shaw notes, our Supreme Court has stated that “[fjlight has been defined simply as ‘[t]he act or an instance of fleeing, esp. to evade arrest or prosecution.’ [Citation omitted.]” State v. Rogers, 282 Kan. 218, 230, 144 P.3d 625 (2006). Shaw argues there is no evidence to support the inference that he was attempting to flee from the commission of DUI or to evade arrest or prosecution for DUI.
The State first replies that the language “flight from” committing a DUI under K.S.A. 21-3442 is superfluous and does not create an alternative means of committing involuntary manslaughter. Our Supreme Court, however, has held that the rules of statutory construction attempt to avoid rendering statutory language meaningless or superfluous. See State v. Sedillos, 279 Kan. 777, 784, 112 P.3d 854 (2005) (stating that rendering a portion of the statute “superfluous or meaningless [is] a result sought to be avoided by the rules of statutory construction”); State v. Burhans, 277 Kan. 858, 871, 89 P.3d 629 (2004) (“ If reasonably possible, this court is to avoid statutory constructions that make part of a statute surplusage.’ [Citation omitted.]”).
Alternatively, the State contends that it presented sufficient evidence of flight. Although the State made no argument during the trial that the evidence established flight from a DUI, the State asserts on appeal that Shaw was “trying to get home without being caught driving under the influence” and was therefore fleeing from the commission of DUI. The citation the State gives to support this statement is merely to Ameigh’s testimony that the collision occurred while he and Shaw were returning to Shaw’s house from Gardner. Although the record establishes that the accident occurred near Shaw’s home, there is nothing in the record that supports the State’s contention' that Shaw was “trying to get home without being caught driving under the influence.”
Moreover, our Supreme Court has treated “flight” as coming after a completed crime, not an ongoing crime. See State v. Kunellis, 276 Kan. 461, 467-74, 78 P.3d 776 (2003) (examining felony-murder statute, which criminalized the killing of a human being in [1006]*1006the commission of, attempt to commit, or flight from an inherently dangerous felony and referring to flight from that “completed crime”). Under the ordinary meaning of tire language of K.S.A. 21-3442, there must be evidence of a separate flight from the crime of DUI to support a conviction under this alternative means. Here, there was absolutely no evidence presented at trial that Shaw committed involuntary manslaughter in flight from a DUI. Therefore, because there was insufficient evidence to support one of the alternative means, the conviction was in error.
The Kansas Supreme Court has stated: “ ‘[A] reversal mandated by Timley [based on an alternative means error] is a reversal for insufficient evidence. An insufficiency error cannot be harmless because it means the State failed to meet its burden of proving the defendant guilty beyond a reasonable doubt. This is a most basic guarantee of due process in criminal cases.’ ” Wright, 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). Thus, in Wright the Kansas Supreme Court holds that an alternative means error is not subject to harmless error analysis. 290 Kan. at 205. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Thus, we will not engage in any analysis of whether the alternative means error committed in this case can be considered harmless.
Shaw’s brief concludes by requesting this court to reverse his conviction. No issue is raised by either party as to whether Shaw can be retried for involuntary manslaughter while driving under the influence of alcohol. Arguably, the legal issue of whether Shaw can be retried for the offense is not ripe for determination. But in the interest of judicial economy, it makes sense to address the issue now in order to save the parties the time and expense of having a second trial that may be found to be legally barred. See State v. Hernandez, 294 Kan. 200, 208-11, 273 P.3d 774 (2012) (court addressed, but did not decide, whether defendant could be retried [1007]*1007for off-grid version of aggravated indecent liberties after his conviction for on-grid version was reversed and remanded for retrial).
The remedy for an alternative means error remains unsettled in Kansas. Because an alternative means error implicates insufficiency of the evidence to support the conviction, arguably an alternative means error results in reversal of the conviction and retrial is barred by double jeopardy. See Burks v. United States, 437 U.S. 1, 11, 16-18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (reversal for insufficient evidence is akin to judgment of acquittal warranting double jeopardy protection). This court has taken this position without specifically addressing the issue. See Perkins, 46 Kan. App. 2d at 128-32 (reversing conviction of driving while suspended due to alternative means error and entering a judgment of acquittal); State v. Owen, No. 102,814, 2011 WL 2039738, at *1-5 (Kan. App. 2011) (unpublished opinion) (reversing convictions of forgery due to alternative means error), rev. granted February 17, 2012; see also dicta in State v. Boyd, 46 Kan. App. 2d 945, 948-49, 268 P.3d 1210 (2011), (stating tire presumed remedy for insufficient evidence of an alternative means crime is reversal and entry of a judgment of acquittal), petition for rev. filed January 23, 2012; cross-petition for rev. filed February 6, 2012.
In State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996), the defendant was convicted of multiple crimes including lewd and lascivious behavior and kidnapping. On appeal, our Supreme Court affirmed the defendant’s conviction of lewd and lascivious behavior. As to kidnapping, our Supreme Court found that, as charged, the kidnapping statute presented the alternative means of kidnapping by “taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: . . . (b) To facilitate flight or the commission of any crime; or (c) To inflict bodily injury or to terrorize the victim or another.” 260 Kan. at 230. After reciting the standard of review for an alternative means case and reviewing the facts in the record on appeal, the Supreme Court found that there was insufficient evidence to support a finding that the defendant took or confined his victim to facilitate flight or the commission of another crime. 260 Kan. at 230-34. The court [1008]*1008simply reversed the kidnapping conviction and did not state whether retrial of any sort was appropriate. 260 Kan. at 234.
Although there is no Kansas Supreme Court case directly on point, the Supreme Court of Washington has addressed the remedy to an alternative means error. It is important to note that current alternative means analysis in Kansas is similar to that of Washington. See Timley, 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988], to distinguish between alternative means and multiple acts challenges and to articulate the test for alternative means cases). In State v. Ramos, 163 Wash. 2d 654, 660-61, 184 P.3d 1256 (2008), the Washington Supreme Court explicitly discussed double jeopardy principles in an alternative means case:
“The alternative means principle dictates that when a jury renders a guilty verdict as to a single crime, but one of the alternative means for committing that crime is later held to be invalid on appeal and the record does not establish that tire jury was unanimous as to the valid alternative in rendering its verdict, double jeopardy does not bar retrial on the remaining, valid alternative mean. [Citations omitted.] This is the case even when one alternative mean has been reversed on appeal due to a finding of insufficient evidence, a finding that has tire same double jeopardy implications as an outright acquittal in other circumstances. [Citations omitted.]”
See also State v. Lucas, No. 27042-1-II, 2002 WL 399485, at *1-3 (Wash. App. 2002) (unpublished opinion) (first-degree robbery conviction reversed and remanded for new trial after appellate court found insufficient evidence to support one of the alternative means of committing the crime).
Moreover, in her above-referenced law journal article, Justice Beier addressed retrial following an alternative means error as follows:
“In a Timley alternative means case, any reversal would be grounded on a failure of proof, a violation of the super-sufficiency condition. Thus retrial on that theory could not be permitted. It, like retrial on any theory held unsupported by sufficient evidence on appeal, would result in double jeopardy. The defendant can only be retried on the theory for which evidence was sufficient the first time, without tire pollution of evidence or argument supporting the alternative theory.” 44 Wash-bum L.J. at 294.
[1009]*1009In Shaw’s case, we are not reversing his conviction because there was insufficient evidence that he committed the crime of involuntary manslaughter while driving under the influence of alcohol; clearly there was sufficient evidence to support Shaw’s conviction based on at least one means of committing the crime. Rather, we are reversing Shaw’s conviction only because, at least theoretically, the jury could have convicted Shaw based on an alternative means not supported by the evidence, i.e., involuntary manslaughter committed in flight from a DUI. If Shaw’s conviction had not been supported by sufficient evidence on any of the alternative means of committing the crime, then this would be the functional equivalent of an acquittal and a retrial would be barred by double jeopardy. But we cannot ignore the fact that there was sufficient evidence to prove at least one means of committing the crime. In this instance, it stands to reason that the proper remedy is to reverse Shaw’s conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial. This remedy does not violate Shaw’s double jeopardy rights.
In summary, the State presented sufficient evidence to support Shaw’s conviction of involuntary manslaughter committed in the commission of DUI. Our conclusion that die State presented sufficient evidence to support Shaw’s conviction of involuntary manslaughter committed in an attempt to commit DUI is based on Perkins, 46 Kan. App. 2d at 127. But because Perkins is stifl'under review by the Kansas Supreme Court, the safest course of action for the State is to retry Shaw on only one means of committing the crime: the unintentional killing of a human being committed in the commission of DUI. Accordingly, Shaw’s conviction of involuntary manslaughter is reversed and remanded for a new trial consistent with this opinion. Because we are reversing Shaw’s conviction, we need not address his sentencing issue.
Reversed and remanded with directions.
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