Review of the judgment of the Court of Appeals in an unpublished opinion filed May 24, 2013. Appeal from Marshall District Court; JAMES A. PATTON, judge.
Corrine E. Gunning, of the Kansas Appellate Defender Office, argued the cause, and Randall L. Hodgkinson, of the same office, was with her on the briefs for appellant.
Laura E, Johnson-McNish, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
Jason Brammer appeals his conviction for involuntary manslaughter while driving under the influence of alcohol (DUI). See K.S.A. 21-3442. He argues the jury was instructed on alternative [301 Kan. 334] means without sufficient evidence as to each means. He also challenges three jury instructions that differed from those Brammer proposed before trial--although Brammer did not object when the trial court failed to adopt his proposed instructions. The Court of Appeals affirmed the conviction. In doing so, the
panel held K.S.A. 22-3414(3) requires a trial objection and applied clear error review to the jury instruction challenges. State v. Brammer, No. 106, 696, 301 P.3d 789, 2013 WL 2395296, at *5 (Kan. App. 2013) (unpublished opinion). We granted review and affirm.
Brammer's alternative means argument is without merit. K.S.A. 21-3442 states in relevant part: " 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 DUI. (Emphasis added.) The italicized language is identical to that used in the felony-murder statute, which has been held to describe the factual circumstances sufficient to establish a material element of the crime, not set out alternative means. State v. Cheffen, 297 Kan. 689, 700-01, 303 P.3d 1261 (2013). The same rationale applies for the involuntary manslaughter statute.
We further hold that K.S.A. 22-3414(3) requires a party to object on the record to a jury instruction by " stating distinctly the matter to which the party objects and the grounds of the objection." This statutory mandate is not satisfied by merely having filed an earlier pretrial request for a different jury instruction. The failure to comply with K.S.A. 22-3414(3) regarding a jury instruction invokes clear error review in a subsequent challenge on appeal to that instruction. Finally, we reject Brammer's arguments relating to the three jury instructions he contests.
Factual and Procedural Background
Taylor White died on October 4, 2009, after Brammer's truck collided head-on with White's vehicle on a well-maintained rural rock road. Three hours after the crash, Brammer's blood alcohol concentration was .11, which is .03 higher than the legal limit.
Brammer does not recall the collision. He testified there was thick dust hanging over the roadway and he did not see White's [301 Kan. 335] truck so there was no time to take evasive action. He also testified he only recalled drinking a 12-pack of beer the night before the collision but was not hung-over the next morning. He remembers drinking one beer the day of the fatality crash.
Hunter Lindeen. the passenger in White's vehicle, testified they first encountered a Jeep Cherokee just as they reached the top of a long hill. White kept driving but pulled off to the side of the road because the Jeep was moving quickly. Lindeen noticed dust after the Jeep passed. It " stayed right with the road. It hadn't moved at all." Three or 4 seconds later, Lindeen saw Brammer's vehicle. When asked what happened next, Lindeen testified " [White] had yelled and I went into a state of shock more or less, and didn't even have time to look at the driver it happened [at] such a fast pace." Lindeen agreed when asked whether Brammer's truck appeared out of nowhere. Lindeen estimated Brammer's truck and the Jeep were both traveling about 70 miles per hour before the collision. Neither Lindeen nor White wore their seat belts.
Brammer's fiancé e, Sally Adkins, was riding in the Jeep's rear passenger seat. She testified the Jeep was going 40 to 45 miles per hour, which she thought was not too fast for the conditions. She also testified White was driving 50 to 55 miles per hour, and the Jeep had to move over to miss hitting the truck. She admits she did not see the crash but went back to find Brammer after he did not show up where he was expected.
A Kansas highway patrol trooper investigated. He testified he could not locate any pre-impact marks on the roadway by either driver, which the trooper took to mean no evasive action was taken. He said it was impossible to determine either vehicle's speed, but the impact occurred in the dead center of the roadway, which is where the trooper expected the vehicles to be traveling on this road. The trooper found no indication Brammer drove erratically.
Medical personnel assisting Brammer told the trooper they could smell alcohol. In his crash report, the trooper indicated alcohol was a contributing factor, as well as the dust. Brammer was charged with involuntary manslaughter while DUI under two alternative theories: (1) he was under the influence of alcohol " to a degree that rendered him incapable
of safely driving a vehicle" ; or [301 Kan. 336] (2) he had a blood alcohol concentration of .08 or more. See K.S.A. 2009 Supp. 8-1567.
A forensic toxicologist testified at trial about alcohol elimination rates. She expressed the opinion that Brammer's blood alcohol level would have been higher than .11 when the vehicles collided, assuming he had not had anything to drink during the hours between the collision and the blood draw. She also explained that generally someone with a .11 blood alcohol level would have slightly increased risk-taking potential, while probably exhibiting slurred speech, decreased visual acuity affecting sharpness and depth perception, and slowed comprehension of information and reaction speed. The toxicologist concluded these things would affect a person's ability to drive.
Brammer's defense theory denied his intoxication was the proximate cause of the collision. Defense counsel's theme was that no one was at fault because the collision was simply an accident. For example, counsel stated, " I am going to argue fault, lack of fault. This was an accident that just happened. It was an accident."
The jury was instructed on involuntary manslaughter while DUI and the lesser included offense of DUI. Brammer was convicted of involuntary manslaughter while DUI with an alcohol concentration of .08 or more.
The Court of Appeals affirmed the conviction. It declined to reach the merits of Brammer's alternative means argument, focusing instead on the fact that only one of the alleged means was listed on the verdict form. The panel concluded there was no doubt the jury convicted on Brammer's actual driving while intoxicated because that was the question on the verdict form. Brammer, 301 P.3d 789, 2013 WL 2395296, at *4. It also held Brammer did not preserve his challenge to the proximate cause instruction by submitting written proposed instructions in advance of trial. 301 P.3d 789, 2013 WL 2395296, at *5. The panel applied clear error review and determined it was not error to omit the jury instruction Brammer proposed. Judge G. Gordon Atcheson concurred as to this point based on the clear error standard. 301 P.3d 789, 2013 WL 2395296, at *10. The panel further held the district court's instructions on lesser included offenses did not amount to clear error. 301 P.3d 789, 2013 WL 2395296, at *12.
[301 Kan. 337] Brammer petitioned for this court's review of all issues raised to the Court of Appeals. He argues the panel wrongly relied on the verdict form to reject his alternative means argument and continues to argue there was insufficient evidence to convict of involuntary manslaughter because the jury was instructed that it must find Brammer unintentionally killed White " in the commission of, while attempting to commit, or while in flight from committing or attempting to commit" DUI based on K.S.A. 21-3442. He also renews his challenges to the jury instructions regarding proximate cause, the sequencing of jury consideration of the lesser included offense, and failure to give a reasonable doubt instruction for the lesser included offense.
We granted review under K.S.A. 20-3018(b). Jurisdiction is proper under K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review).
No Alternative Means Instructed
Kansas recognizes an " alternative means rule" or its corollary the " super-sufficiency requirement," stating:
'" [W]here 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.]" ' State v. Timley, 255 Kan. 286, 289, 875 P.2d 242(1994) (quoting State v. Kitchen, 110 Wash.2d 403, 410, 756 P.2d 105 ).
Whether a statute creates alternative means is an issue of statutory interpretation, raising questions of law appellate courts review de novo. State v. Brown, 299 Kan. 1021, 1031, 327 P.3d 1002 (2014).
In Brammer's case, the jury was instructed that involuntary manslaughter is the unintentional killing " in the commission of, while attempting to commit, or while in flight from
committing or attempting to commit the act of operating any vehicle. .. while having an alcohol concentration in his blood of .08 or more." Brammer argues this language creates three means of committing involuntary manslaughter, while the State only proved he was driving. [301 Kan. 338] Brammer seeks reversal of his conviction because there was insufficient evidence of the other means.
As mentioned, the Court of Appeals avoided Brammer's alternative means argument by focusing on the verdict form's more specific language. See Brammer, 301 P.3d 789, 2013 WL 2395296, at *4 (" [W]e resolve this issue without deciding whether involuntary manslaughter while DUI is an alternative means offense," ). The panel held the verdict form made clear the jury found Brammer violated the statute by driving, so his statutory right to a unanimous verdict was not violated. 301 P.3d 789, 2013 WL 2395296, at *4. The verdict form simply stated: " We, the jury, find the defendant ...