Appeal from Sedgwick District Court; ERIC R. YOST, judge.
BY THE COURT
1. The aiding and abetting statute does not create an alternative means of committing the charged crime by adding distinct material elements to the definition of that crime. The aiding and abetting statute simply extends criminal responsibility to a defendant other than the principal actor.
2. The phrase " person or presence" in the aggravated robbery statute does not create an alternative means of committing the crime; rather, it describes the proximity of the victim to the property taken.
3. K.S.A. 21-3426 defines robbery as the taking of property from the person or presence of another by force or by threat of bodily harm to any person. The words by force or by threat of bodily harm are merely different options or means of compelling the taking of someone else's property, the focus of the crime of robbery.
4. When the extent of a durational departure sentence is challenged on appeal, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the Kansas Sentencing Guidelines and proportionate to the crime severity and the defendant's criminal history.
5. K.S.A. 21-4716(c)(1) sets out a nonexclusive list of mitigating factors a district court may consider when determining whether to grant a departure sentence. In exercising such discretion, the sentencing court must state on the record at the time of sentencing the substantial and compelling reasons justifying a departure from the presumptive guidelines sentence.
6. Under the factual circumstances presented to the district court in this case, the departure sentence imposed was not disproportionate to the severity level of the crime committed when weighed against the two mitigating factors, which when considered collectively were substantial and compelling reasons that justified the departure sentence.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant/cross-appellee.
Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee/cross-appellant.
Before MALONE, C.J., HILL, J., and MICHAEL E. WARD, District Judge, assigned.
After our decision in State v. Cato-Perry, 48 Kan.App.2d 92, 284 P.3d 363 (2012), rev. granted May 29, 2014, this case returns to the Court of Appeals on remand from the Kansas Supreme Court on the issue of whether a charge of acting as a principal or aider and abettor created an alternative means case. Our Supreme Court granted the State's petition for review, vacated our prior decision, and remanded this case to us to review the matter in light of State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). We also consider three additional alternative means arguments and the cross-appeal by the State challenging the district court's granting of a durational departure sentence.
Because Cato-Perry committed his crime while on bond, the district court ordered him to serve the 57-month sentence consecutive to his 34-month sentence in case 07CR308. This is a durational departure sentence.
Cato-Perry made four alternative means arguments on direct appeal: (1) instructing the jury it could convict him of aggravated robbery as either a principal or an aider and abettor created alternative means upon which he could be found guilty of aggravated robbery; (2) the aiding and abetting jury instruction, in accordance with K.S.A. 21-3205(1), created six alternative means by which aggravated robbery could be committed under the aiding and abetting statute; (3) the element of taking property from the " person or presence" of the victim in the aggravated robbery instruction raises an alternative means issue; and (4) the language of ...