Insufficient alternative means results in reversal in kidnapping case

Former ADO Jocilyn Oyler won in State v. George, No. 97,679 (Kan. App. June 18, 2010), obtaining a reversal in a Leavenworth County rape/kidnapping prosecution. The jury was presented with the alleged alternative means that Mr. George confined a person with intent to "facilitate flight or the commission of any crime." The state conceded that there was no evidence that Mr. George intended to facilitate flight, but that overwhelming evidence supported the alternative means of facilitating commission of a crime.

The COA originally affirmed, but the KSC granted review and remanded for reconsideration in light of State v. Wright, 290 Kan. ___, 224 P.3d 1159 (2010). Under Wright, the COA reversed:

However, in light of the Court's recent decsion in Wright, we now reverse George's conviction of kidnapping. The jury here was instructed that it could find the defendant kidnapped R.L. if he took or confined her by force, threat, or deception with the intent to hold her to "facilitate flight or the commission of any crime." The State conceded that it presented no evidence that George acted to facilitate flight, but suggested the kidnapping verdict could nevertheless be affirmed based upon overwhelming evidence that George acted with the intent to facilitate the commission of rape.

In light of the court's reversal of Dixon, we conclude the State presented insufficient evidence of facilitating flight, and therefore his kidnapping conviction must be reversed and the case remanded for resentencing.

This Wright issue is coming up in several contexts. An example is that the state often charges theft with alternative means (exerting or obtaining property). But "exerting" (i.e. embezzlement) and "obtaining" (i.e. stranger taking property) are really almost mutually exclusive. So in any case where the jury instruction presents theft as "exerting or obtaining" property, there is probably an alternative means argument. So look carefully at the instructions. Prosecutors often use a shotgun approach to charging documents. But if evidence of one or more of the alternative means is insufficient, it should result in reversal on appeal.

It's a nice example of a "zone of victory." Although Wright itself was not a reversal, the law propounded in Wright will probably result in a lot of reversals.