Prosecutor's argument does not functionally elect an alternative means

Meryl Carver-Allmond won in State v. Owen, No. 102,814 (Kan. March 13, 2015)(unpublished), obtaining a new trial in a Sedgwick County forgery and identity theft prosecution.  The Court of Appeals had held that the forgery conviction was an alternative means case and that the state failed to prove one of the alternative means.  The state filed a petition for review only on the issue that the state failed to prove one of the alternative means.

Subsequent to the Court of Appeal's decision, the KSC held in a different case that forgery is not an alternative means case.  But the state did not ask for review of that holding in Ms. Owen's case.  As a result, it was not before the KSC:

Pointedly, however, the State's petition for review in this case did not ask this court to review the portion of the Court of Appeals' decision that determined how the statutory language of the forgery statute creates alternative means of committing the crime. Our general rule is that “[t]he court will not consider issues not presented or fairly included in the petition [for review].” “Under Supreme Court Rule 8.03(g)(1), a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review.” The State did not allege that the Court of Appeals erroneously found the existence of alternative means in this case and, consequently, that issue is not before us to review. Thus, we will limit our review to the two issues that we deem to be fairly included in the State's petition for review.

(This may be why this is an unpublished opinion, a fairly unusual situation in the KSC)

In any case, the KSC decided the two issues before it, reaffirming its precedent that the state has to present sufficient evidence of alternative means and that the prosecutor's argument does not functionally elect a means.  As a result, the KSC reversed and remanded the convictions.