As Amended April 15, 2014.
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge.
BY THE COURT
1. The Kansas aiding and abetting statute does not create distinct material elements of a crime but simply assigns criminal responsibility. The statute describes factual circumstances that may be proved in order to obtain a conviction for other crimes.
2. The legislative intent in creating the aiding and abetting statute is to make each individual who engages in a concerted action to carry out a crime equally culpable for the crime.
3. The State is not required to charge aiding and abetting in order to pursue such a theory at trial. Even if aiding and abetting was not charged, if the jury could reasonably conclude from the evidence that the defendant's culpability lies in aiding and abetting another in the commission of a crime, it is appropriate to instruct the jury on a theory of aiding and abetting.
4. A defendant is entitled to a voluntary intoxication instruction if there is evidence supporting such a defense.
5. Unless the defendant presents sufficient evidence showing intoxication to the extent of impairing the ability to form the requisite intent, a court is not required to instruct the jury on the defense of voluntary intoxication.
6. Without evidence that the defendant is impaired to the extent that he or she has lost the ability to reason, to plan, to recall, or to exercise motor skills as a result of voluntary intoxication, it is not clear error to fail to give a voluntary intoxication instruction.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
[299 Kan. 132] OPINION
Alejandro E. Betancourt, Jr., appeals from his conviction of first-degree murder and
criminal discharge of a firearm at an occupied building. Finding no reversible error, we affirm.
In May 2010, Daniel Betancourt was involved in an altercation at an apartment building on West 21st Street in Wichita that resulted in his hospitalization. Luis Guerrero-Lopez was associated with the assailants, and Guerrero-Lopez was at the time romantically involved with Maribel Andrade, who lived at a residence on North Jackson Avenue with her mother and brothers. Daniel is the brother of the defendant, Alejandro.
Gregory Patton was a friend of Alejandro and Daniel's brother, Eli Betancourt. On June 19, 2010, Patton and Eli got together and went to a birthday party at a friend's house. Eli drove them there in his green Jeep at around 10:30 in the evening. Alejandro was already at the party when they arrived. Eli, Alejandro, and Patton all consumed alcohol at the party. At some point in time during the party, a man in a red jersey, who was later identified as Edward Laurel, was overheard saying that he knew where the individual who had been involved in the incident with Daniel lived. Alejandro, Eli, and Patton left the party together sometime shortly before sunrise. Eli was driving, and Alejandro sat in the passenger seat, with Patton sleeping part of the time in the back.
Patton woke up when they pulled up in front of a house that was unfamiliar to him. Patton saw Eli, Alejandro, Laurel, and an unfamiliar Hispanic man talking in the front yard. Eli, Alejandro, and Laurel got back in the Jeep, with Alejandro driving. Laurel and Patton sat in the back seat, while Eli sat in the front passenger seat. Laurel explained that he was going to get back at somebody. He gave directions on how to get to a house on North Jackson Avenue. Alejandro slowly drove the car by the house when they arrived, parking just out of sight of the residence. Laurel was holding [299 Kan. 133] a semiautomatic gun and explained that the plan was to run up to the house and shoot into it.
Alejandro told Eli and Laurel to run back to the car when they had finished their mission. Eli and Laurel got out of the Jeep and walked toward the house. Alejandro told Patton, " Listen for it." They heard gunshots, and, after a few minutes, Alejandro backed the car up when Eli and Laurel failed to reappear. Alejandro saw that the two gunmen were running the wrong way, so he drove the car around the block to meet them and pick them up. Laurel said as he got in the car, " I got him," and Alejandro drove the car away at a high speed.
Eli and Laurel fired at least 15 shots into the house, using a .22 caliber firearm and a 9 mm firearm. An examination of damage to the front doors indicated that someone had held the screen door open and had fired shots directly into the main door.
That night, 13-year-old Miguel Andrade, the younger brother of Maribel, had stayed up late watching television and had gone to sleep on the living room sofa. Around 6 in the morning, his mother heard a loud bang and then heard Miguel shouting in Spanish that he had been hit. She went into the living room, where she found Miguel lying on the floor by the front door. She initially thought someone had hit Miguel with a fist, but then he said, " They shot me." She saw blood on him, and she called 911 and began shouting out a window to neighbors. Miguel was taken to a hospital by ambulance, where he died from multiple gunshot wounds.
Neighbors who observed the scene were able to describe what happened and give descriptions of the two gunmen. They saw two Hispanic men walk up to the house, where one of the men either knocked on the door or rang the doorbell while the other looked in through a window. The two started shooting at the door when it appeared that someone inside the house was approaching the door. A neighbor across the street had set up motion-sensitive security cameras to help safeguard construction materials on his property, and at about 6 in the morning the cameras recorded a vehicle resembling Eli's Jeep slowly driving by the house several times before it finally parked.
[299 Kan. 134] After leaving the scene of the shooting, Alejandro drove back to the house where he and the others had initially met up with Laurel. Laurel took the guns and got out of the Jeep, and Eli took over driving from Alejandro. Police intercepted the Jeep soon
afterwards, and several eyewitnesses identified Eli as one of the shooters.
The State filed an information charging Alejandro with one count of premeditated first-degree murder, or, in the alternative, one count of felony first-degree murder, and one count of criminal discharge of a firearm at an occupied building. A jury found Alejandro guilty of first-degree murder under both theories and guilty of criminal discharge of a firearm.
On May 13, 2011, the court sentenced Alejandro to a hard 25 life sentence for murder and a consecutive 17-month sentence for the criminal discharge of a firearm. Alejandro filed a timely appeal to this court.
Jury Instructions With Respect to Intent
In order to be guilty 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. Llamas, 298 Kan. 246, 253, 311 P.3d 399 (2013) (quoting State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 ). " [W]hen a person knowingly associates with an unlawful venture and participates in a way that demonstrates willful furtherance of its success, guilt as an aider and abettor is established. [Citations omitted.]" State v. Herron, 286 Kan. 959, 968, 189 P.3d 1173 (2008).
Jury Instruction 7 explained aiding and abetting:
" A person who, either before or during its commission, intentionally aids another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime."
Jury Instruction 8 explained premeditated murder:
" The defendant is charged with the crime of first degree murder. The defendant pleads not guilty. To establish this charge, each of the ...