BY THE COURT
means are legislatively determined, distinct, material
elements of a crime, as opposed to descriptions of the
material elements or of the factual circumstances that would
prove the crime.
K.S.A. 2012 Supp. 21-5302 does not set forth alternative
means for committing an overt act in furtherance of a
Under the facts of this case, it was legally appropriate for
the court to instruct the jury it had to find the defendant
committed the crime of conspiracy to commit aggravated
robbery knowingly rather than intentionally.
Whenever a court admits evidence pursuant to K.S.A. 60-455,
it must give a limiting instruction informing the jury of the
specific purpose for admission. The goal of a limiting
instruction is to eliminate the danger that jurors will
consider the evidence to prove the defendant's mere
propensity to commit the charged crime.
Appellate courts use a two-step process to evaluate claims of
prosecutorial error- simply described as error and prejudice.
To determine if the prosecutor erred, the appellate court
must decide whether the prosecutorial acts complained of fall
outside the wide latitude afforded prosecutors to conduct the
State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's
constitutional right to a fair trial. If the court finds
error, the burden falls on the State to demonstrate beyond a
reasonable doubt that the error complained of will not or did
not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility the
error contributed to the verdict.
Under the facts of this case, the prosecutor's
characterization of the defendant's theory of the case as
"ridiculous" was a fair comment on the evidence.
from Wyandotte District Court; J. Dexter Burdette, judge.
Tate Mann, of Kansas Appellate Defender Office, argued the
cause, and Kimberly Streit Vogelsberg, of the same office,
was on the brief for appellant.
Christopher L. Schneider, assistant district attorney, argued
the cause, and Mark A. Dupree Sr., district attorney, and
Derek Schmidt, attorney general, were with him on the brief
G. Butler directly appeals his convictions-first-degree
felony murder, conspiracy to commit aggravated robbery, and
attempted aggravated robbery. He alleges multiple reversible
errors, but after a thorough review, we affirm Butler's
also argues-and the State concedes-the district court erred
by sentencing him to lifetime postrelease supervision instead
of lifetime parole for his first-degree felony-murder
conviction. We agree this was error. We vacate this portion
of Butler's sentence and remand the case to the district
court so the court may impose lifetime parole.
and Procedural Background
after 7 p.m. on January 9, 2013, Kevin Smith returned home
from work to the apartment he shared with his fiancée,
Demetria Hunter, in Wyandotte County. When Smith arrived, he
discovered a vehicle parked in his spot. Hunter and
Smith's neighbors had a history of parking in their
stalls and making loud noises. Smith saw a white male- later
identified as Clint Schierbaum-exiting the neighboring
apartment. Smith questioned him about the vehicle, but
Schierbaum told him he did not know who owned the vehicle and
15 minutes later, Hunter and Smith heard a series of loud
popping or banging noises coming from the neighboring
apartment. Smith later testified he heard two sets of pops
about seven to ten minutes apart. Hunter, on the other hand,
stated when she heard some banging noises, she "beat on
the wall . . . and all of a sudden I just kept hearing bang,
bang, bang on the wall."
called the police to register a noise complaint. She and
Smith stepped out of their front door to investigate. Three
white men emerged from the neighboring apartment. When Hunter
tried to confront them about the noise, the group hurried
past them, climbed into a vehicle, and left. Hunter thought
one of the men appeared afraid.
enforcement officers arrived shortly thereafter. After they
spoke with Smith and Hunter, Nick Rhodes-a resident of the
neighboring apartment-arrived on the scene. Rhodes told the
officers his roommates had informed him a shooting had
occurred in the apartment. Rhodes gave the officers
permission to search the apartment.
officers discovered two men in an upstairs bedroom, both of
whom had been shot. Matthew Gibson-who was lying on the
floor-was dead. A forensic pathologist later testified Gibson
died from multiple gunshot wounds, including one to the head
and two to his abdomen. Officers recovered a .357 caliber
revolver resting on the floor next to Gibson, which was later
identified as his revolver. The revolver had one empty
cartridge casing in it, while the remaining cartridges were
Pruneda was lying on the bed. Pruneda had been shot in the
back of the head but was still alive and conscious. Officers
located a .40 caliber semiautomatic handgun resting on the
bed next to Pruneda. The gun's magazine contained loaded
rounds, but the chamber was empty. Officers later recovered
several .32 caliber shell casings from the bedroom. After
calling for medical personnel, an officer tried to question
Pruneda, but he was too disoriented to give an account of
what happened. Pruneda was transported to the hospital for
to Schierbaum, he arrived at the apartment earlier that day
around 7 p.m. to buy a gram of marijuana from Nick Yanos.
Schierbaum entered the apartment through the unlocked front
door and went upstairs to Yanos' bedroom, where Yanos
typically sold marijuana. Schierbaum testified Yanos usually
left the front door unlocked. A couple minutes after he
arrived, two other individuals-Bryce Meyn and Brandon
Eberth-arrived to buy marijuana from Yanos. All four men
smoked some marijuana together.
and Gibson then arrived together, and all six of them
congregated in Yanos' bedroom. The six men knew each
other from high school and were cordial with each other. A
few minutes later, Schierbaum left with his marijuana through
the front door where he was confronted by Smith about the
vehicle parked in Smith's spot.
point, five people were in the bedroom-Pruneda, Gibson,
Eberth, Meyn, and Yanos. Not long after Schierbaum left,
Eberth heard the footsteps of somebody walking up the
apartment stairs. Eberth and Meyn testified a black male
wearing a ski mask and brandishing a pistol ascended the
stairs. He pointed the pistol at the group and told them to
get on the ground. Eberth-assuming they were being
robbed-went to the ground, pulled out his wallet, and held it
out for the man. Meyn also went to ground. Several shots were
fired, and the assailant fled the apartment.
remembered hearing someone tell them to "get the fuck
down, " and he looked right before being shot in the
back of his head. While at the hospital the following day,
Pruneda told an officer a single black male wearing a ski
mask entered the apartment and shot him during the course of
the assailant fled, Gibson was hunched over by a dresser
groaning and bleeding. Pruneda was also injured and bleeding,
though he was talking. Afraid, Meyn, Eberth, and Yanos left
the apartment in a hurry. Yanos took his marijuana with him.
As the three men exited the apartment, they passed Smith and
Hunter, who were yelling that they had called the police. The
three men loaded into Eberth's vehicle and left. Yanos
threw his marijuana out of the car, and they eventually
returned to the apartment and spoke with the police officers
who were present when they arrived.
point in time, law enforcement did not have a lead on the
shooter's identity. But on January 14, 2013, officers
received a phone call from Beau Barger who claimed he had
information related to the shooting. Barger implicated his
coworkers, Marcus Butler and Tyler Jewell. Kyle Cole, another
coworker, later provided law enforcement with corroborating
information. The State charged Butler with one count each of
first-degree felony murder, attempted aggravated robbery, and
conspiracy to commit aggravated robbery.
district court held a three-day jury trial. The State called
16 witnesses to testify, including Schierbaum, Meyn, Eberth,
Pruneda, Cole, Barger, Smith, and Hunter. Jewell, who claimed
to have been Butler's accomplice, also testified for the
told the jury he, Butler, Jewell, and Cole worked in the
automotive detail department at Zeck Ford-a car dealership in
Leavenworth, Kansas. Barger knew Yanos and those present in
the apartment on January 9, 2013, from high school. He also
knew Butler purchased marijuana from Yanos. About one month
before the shooting, Butler told Barger he was upset with a
purchase from Yanos and he wanted to rob Yanos. Barger
advised against doing so, believing it would be pointless.
About one week before the shooting, Butler again approached
Barger and said he wanted to rob Yanos.
night of the shooting, Barger claimed he had learned about
the events through Cole. The next morning at work, Butler
pulled Barger into a room and told him he had shot
"him." By this time, Barger knew Gibson was dead.
Butler told Barger that after he entered the house, he found
four or five people in a room, told everyone to get down, and
when he heard shots and saw flashes, Butler began shooting
until he "[e]mptied the clip." Butler allegedly
warned Barger to not tell anyone else about the shooting.
Because he was afraid of what Butler might do to him, Barger
waited a few days before calling the police.
told the jury that about one month before the shooting,
Butler approached him looking for someone who sold marijuana.
Cole purchased marijuana from Yanos, so he referred Butler to
Yanos. Like Barger, Cole knew Yanos and those present in the
apartment from high school. Cole knew Butler had purchased
marijuana from Yanos "a couple times."
Butler approached Cole four or five times and asked Cole to
help him rob Yanos. Butler wanted to know how much money
Yanos kept on him and whether he had any guns. According to
Cole, he refused to help Butler and told Butler not to rob
day of the shooting, Jewell warned Cole not to go to
Yanos' house that evening because Butler was "gonna
run up in there." Cole claimed he thought Jewell was
joking. Later that night, Cole received a frantic phone call
from Jewell's phone. Jewell told Cole: "[W]e were
not there tonight . . . you don't know anything. If you
say anything, we will find you." Butler then came on the
line and told Cole: "We were not there tonight, you
don't know anything. There was no evidence tracing back
to him." Cole claimed Butler threatened to find him and
"beat [his] ass" if he told anybody it was them.
Butler also asked Cole to tell him where he and Barger were,
presumably because they were the only ones who knew about
Butler's plan to rob Yanos.
days later, Cole returned to work where Butler pulled him
aside to a break room to have a private conversation. Butler
told Cole "he ran up in there and they pulled a gun out
so he just started shooting." Butler allegedly told Cole
there was no evidence linking him to the crime, only he and
Barger could implicate him, and Butler wanted to "make
sure [they] would keep [their] mouths shut." Cole
believed Butler was trying to intimidate him. The
conversation concluded when their boss entered the room.
later, Cole received a phone call while at work from a number
he did not recognize. Cole claimed he answered the call over
the speakerphone while Jewell was working next to him. It was
a police detective who asked him to come to the police
department for questioning. After Cole hung up, he claimed
Jewell "started freakin' out" and told Cole
that he could not go to the police department. Jewell later
denied ever overhearing a phone call. Cole claimed Jewell
then left work to pick up Butler and bring him back to work.
Cole left work, he discovered Butler and Jewell waiting by
his vehicle in Jewell's pickup truck. They instructed
Cole to get into the truck, and once he was inside, they told
him, "[Y]ou can't go in there, you can't say
shit, you don't know anything. Where's [Barger]? Call
[Barger], I need to know where [Barger] is." Cole told
them he would remain silent, but after he exited the truck,
Cole went to the police station and gave a statement.
was the State's final witness. He testified pursuant to a
plea agreement. The State originally charged Jewell with the
same counts as Butler-first-degree murder, attempted
aggravated robbery, and conspiracy to commit aggravated
robbery. In exchange for his testimony, the State amended the
charges to one count of second-degree murder, to which Jewell
bought marijuana from Yanos and knew Butler purchased
marijuana from Yanos on a weekly basis. Jewell would
occasionally accompany Butler to Yanos' apartment so they
could both buy marijuana. Jewell and Butler were friendly
with each other and would hang out outside of work.
before the shooting, Jewell heard Butler talking to Cole and
Barger about how Yanos was "short[ing]" him on
marijuana. Butler thought Yanos was selling him "shake
weed" instead of "solid nuggets." The
afternoon of the shooting, Jewell and Butler spoke on the
phone about going to Yanos' apartment and robbing him of
his marijuana and money. Butler did not own a vehicle at the
time, so he asked Jewell to drive him to Yanos'
4 or 5 p.m. that day, Jewell spoke with Butler to let him
know that he would help with the robbery. Jewell testified he
agreed to help Butler because he wanted to scare Yanos. To
him, Yanos "was a punk kid selling weed, " and he
wanted to "bring him down a notch." After Butler
finished work around 6:45 or 7 p.m., Jewell picked him up
from the dealership. From there, Jewell drove them to
Yanos' apartment. On the way there, they stopped at a gas
station, and Butler paid for Jewell's gas in exchange for
driving him to the apartment. Butler was wearing black jeans,
a black hoodie, black and white shoes, and he had a ski mask
rolled up on the top of his head.
drive to the apartment, Butler and Jewell discussed their
plan. They decided to both enter the apartment; Butler was
supposed to go upstairs and rob Yanos while Jewell remained
downstairs to keep a lookout. Jewell noticed on the ride to
the apartment Butler had a silver and black handgun in his
lap. When they arrived, Jewell parked down the street, so
Yanos could not see his truck. According to Jewell, they
waited in the truck until they received a text message from
Cole letting them know Yanos was home.
it was dark, Butler and Jewell exited the truck and walked to
Yanos' apartment. Butler entered the front door-which was
unlocked-and Jewell followed behind him. As they entered the
front door, Butler pulled the ski mask down to cover his
face. Some of Butler's skin was visible through the mouth
and eye holes of the mask. Both Meyn and Eberth told the jury
they could see the color of the shooter's skin from
around the openings in the ski mask.
who was unarmed, checked the downstairs living room to make
sure nobody was present and then remained by the front door.
Butler walked up the stairs with the gun in his hand, which
Jewell saw Butler carrying when they entered the building. As
he ascended the stairs, Jewell heard Butler cock the weapon
and yell for everyone to get on the ground. He then heard
feet stomping followed by at least 10 gunshots, at which
point Jewell fled for the truck. Jewell heard Butler running
behind him, and when they reached the truck, Jewell drove
them to an apartment in Kansas City, Missouri, near the
Jewell was driving, Butler told him what had happened:
"[W]hen he went up the stairs, the dude stood up and
walked towards him and he pushed him and he grabbed some dude
and put him up against the wall. Out of the corner of his eye
he saw a dude stand up with his gun to shoot at him and he
said he missed, that's when he grabbed him and started
also told Jewell when he fired his gun, he "didn't
miss." While on their way to the apartment, Jewell
called Cole from his cell phone. Butler also spoke with Cole,
but Jewell could not recall the details of what was said. On
cross-examination, Jewell denied ever threatening Cole or
Barger. Once at the apartment, they disposed of their
belongings. Jewell saw Butler place the gun into a bag. They
remained at the apartment for about half an hour and then
returned to Leavenworth. Jewell dropped Butler off at his
apartment and went home.
went to work the next day, where he spoke with both Cole and
Barger. Jewell claimed he simply apologized to them. After
Cole received a call from the police, Jewell recalled
speaking with Cole and Butler in his vehicle outside of work.
Not long after, Jewell received a phone call from the police,
asking him to come to the station for questioning. He then
had his girlfriend drive him to the police station where he
waived his Miranda rights and confessed.
Jewell's testimony, the State rested. Butler moved for a
directed verdict, which the court denied. Butler rested
without presenting any evidence. The jury ultimately found
Butler guilty as charged. The court did not poll the
individual jurors, but asked the jury, "[S]o say you
all?" The jury responded, "Yes."
after Butler was convicted, his trial counsel filed a motion
for new trial and memorandum in support, alleging several
trial errors. Over two weeks later, Butler submitted a motion
for ineffective assistance of counsel, asserting several
deficiencies in his trial counsel's performance. Nearly
one month later, Butler filed a pro se motion asking for a
new trial, in which he primarily argued his trial counsel was
ineffective for not calling an alibi witness.
November 24, 2014, the district court held a preliminary
hearing on the motions. The court stated it had received
"a lot of correspondence" from Butler claiming he
was unhappy with his trial counsel. Butler told the court he
had communication issues with counsel throughout trial and
claimed his girlfriend, Erin Davis, was "constantly
trying to get in contact with him" and would have
provided him with an alibi. Thereafter, the court allowed
trial counsel to withdraw and appointed new counsel.
eight months later, Butler's new counsel filed an
"amended/supplemented motion for new trial." The
motion incorporated the arguments raised by Butler's
trial counsel and further argued trial counsel was
ineffective (1) by failing to investigate the presence or
absence of DNA and other forensic evidence at the crime
scene; (2) by neglecting to subpoena phone records and time
cards from the dealership; (3) by failing to investigate a
gun once located in a Leavenworth pawn shop that Butler
believed may have belonged to the actual shooter; (4) by not
calling his girlfriend as an alibi witness; and (5) by
failing to generally investigate Butler's case.
district court conducted an evidentiary hearing, during which
Butler's trial counsel testified. Following the
testimony, Butler's new counsel also advised the court
Butler believed his "uncharged bad acts" of the
unsuccessful solicitations of and threats toward Barger and
Cole "should not have been brought up."
court ultimately denied Butler's motion for new trial. It
first outlined the evidence presented at trial and determined
there was sufficient evidence to support each of Butler's
three convictions. Next, the court found Butler did not
provide his trial counsel with an alibi witness and trial
counsel had numerous contacts and visits with Butler. The
court dismissed Butler's concerns over potential DNA
evidence because his position at trial was that the State
could not provide any DNA or other physical evidence tying
him to the shooting. It further reasoned because there was
testimony Butler had previously been in the apartment to
purchase marijuana, trial counsel understandably would not
want to search for and possibly unearth Butler's DNA in
the apartment. The court found the remaining information
requested by Butler irrelevant. Lastly, the court held a
limiting instruction regarding Butler's other bad acts
was not warranted because his unsuccessful solicitation of
and threats to Cole and Barger were "part and
parcel" of the events that occurred that day.
thereafter, the district court sentenced Butler to life in
prison without the possibility of parole for 20 years for the
first-degree felony murder and imposed consecutive 32-month
sentences for the attempted aggravated robbery and conspiracy
to commit aggravated robbery. The court also imposed lifetime
timely appealed his convictions and sentence to this court.
See K.S.A. 2012 Supp. 22-3601(b)(3) (providing for direct
appeal to the Supreme Court from a district court's final
judgment when a maximum sentence of life imprisonment has
2012 Supp. 21-5302 does not set forth alternative means for
committing an overt act in furtherance of a conspiracy.
first argues his conviction for conspiracy to commit
aggravated robbery must be reversed because there was
insufficient evidence to support a finding of guilt on each
of the various alternative means for committing the overt act
in furtherance of the conspiracy. "Alternative means
issues arise when the statute and any instructions that
incorporate it list distinct alternatives for a material
element of the crime." State v. Sasser, 305
Kan. 1231, 1239, 391 P.3d 698 (2017); State v.
Brown, 295 Kan. 181, 184, 284 P.3d 977 (2012) ("We
hold that a statute-and any instruction that incorporates
it-must list distinct alternatives for a material element of
the crime, not merely describe a material element or a
factual circumstance that would prove the crime, in order to
qualify for an alternative means analysis and application of
the super-sufficiency requirement."). "Alternative
means are legislatively determined, distinct, material
elements of a crime, as opposed to legislative descriptions
of the material elements or of the factual circumstances that
would prove the crime." State v. Foster, 298
Kan. 348, Syl. ¶ 4, 352, 312 P.3d 364 (2013).
is an alternative means case, we must conduct what we have
termed a "super-sufficiency" analysis. That is,
sufficient evidence must support each of the alternative
means charged to ensure that the verdict is unanimous as to
guilt. Brown, 295 Kan. at 188; see State v.
Bolze-Sann, 302 Kan. 198, 208, 352 P.3d 511 (2015)
("'"'[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.'"'").
the case does not involve alternative means, the question of
jury unanimity is not implicated. See State v.
Swint, 302 Kan. 326, 336, 352 P.3d 1014 (2015).
Therefore we must initially consider whether the jury was
ever presented with an alternative means case. The
determination of whether a case involves alternative means is
usually a question of statutory interpretation subject to
unlimited review. See State v. Williams, 303 Kan.
750, 757, 368 P.3d 1065 (2016).
rules of statutory interpretation and construction are well
"The touchstone of statutory construction is legislative
intent, and to divine this intent we first examine a
statute's plain language to determine whether it
describes alternative means by listing 'alternative
distinct, material elements.' The legislature typically
signals its intent to create an alternative means by
'separating alternatives into distinct subsections of the
same statute.' [Citations omitted.]" 303 Kan. at
law defines conspiracy as "an agreement with another
person to commit a crime or to assist in committing a crime.
No person may be convicted of a conspiracy unless an overt
act in furtherance of such conspiracy is alleged and proved
to have been committed by such person or by a
co-conspirator." K.S.A. 2012 Supp. 21-5302(a).
Conspiracy is comprised of two elements: "'(1) An
agreement between two or more persons to commit or assist in
committing a crime and (2) the commission by one or more of
the conspirators of an overt act in furtherance of the object
of the conspiracy.'" State v. Hill, 252
Kan. 637, 641, 847 P.2d 1267 (1993).
the statute does not list alternative ways a fact-finder
could conclude the defendant committed an overt act in
furtherance of the conspiracy; it simply states a conviction
cannot occur unless an overt act is alleged and proved.
Indeed, the language upon which Butler bases his alternative
means claim does not appear in K.S.A. 2012 Supp. 21-5302.
"That alone indicates the legislature never intended for
cases like [defendant's] to be alternative means
cases." Williams, 303 Kan. at 758. Instead, the
Legislature has seen fit to leave the question of what
constitutes an overt act to the judicial process. See, e.g.,
State v. Mays, 277 Kan. 359, 385, 85 P.3d 1208
(2004) (holding there was sufficient evidence to find the
defendant committed overt acts in furtherance of a conspiracy
to commit first-degree murder by obtaining a weapon and
driving around looking for victims). Thus looking solely to
the plain language of K.S.A. 2012 Supp. 21-5302, we conclude
the statute does not set forth alternative means for
committing an overt act. See State v. Cottrell, 53
Kan.App.2d 425, 433, 390 P.3d 44 ("A plain reading of
the language in the conspiracy statute reflects that the
legislature did not intend to create more than one distinct
way in which a defendant can commit an overt act."),
rev. granted 306 Kan. 1322 (2017).
also directs our attention to Instruction 19, which read:
"The defendant is charged in Count III with Conspiracy
to Commit Aggravated Robbery. The defendant pleads not
"To establish this charge, each of the following claims
must be proved:
"1. The defendant agreed with another person to commit
or assist in the commission of aggravated robbery.
"2. The defendant did so agree with the intent that
aggravated robbery be committed.
"3. The defendant or any party to the agreement acted in
furtherance of the agreement by discussing and planning
the aggravated robbery, arrived at the location, and carried
out the plan.
"4. This act occurred on or about the 9th day of
January, 2013, in Wyandotte County, Kansas." (Emphasis
complaint alleged the same series of overt acts.
isolates the particular phrase, "discussing and planning
the aggravated robbery, " arguing this alone could
never-as a matter of law-constitute an overt act in
furtherance of a conspiracy. See State v. Crockett,
26 Kan.App.2d 202, Syl. ¶ 6, 205, 987 P.2d 1101 (1999)
(reversing a defendant's conviction for conspiracy to
commit first-degree murder where the complaint only listed
"planning on the time, location and manner of
killing" as the overt act in furtherance of the
begins his argument by claiming the "district court
instructed the jury that to be guilty, Mr. Butler, or any
other party to the agreement, committed any of the
following overt acts: by discussing and planning the
aggravated robbery, arrived at the location, and carried out
the plan." (Emphasis added.) Butler wrongly
characterizes the court's instructions. The court told
the jury it must find "each of" the elements must
be proved, which included: "The defendant or any party
to the agreement acted in furtherance of the agreement by
discussing and planning the aggravated robbery,
arrived[sic] at the location, and
carried[sic] out the plan."
courts consider "'jury instructions as a whole,
without focusing on any single instruction, in order to
determine whether they properly and fairly state the
applicable law or whether it is reasonable to conclude that
they could have misled the jury.'" State v.
Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014). When
looking at the third element in its entirety, Butler fails to
recognize "discussing and planning" is only one
part of the entire series of acts alleged by the State, which
is connected by the coordinating conjunction,
"and." Therefore in order to find Butler guilty of
conspiracy to commit aggravated robbery, the jury had to find
he or Jewell discussed and planned the aggravated robbery,
and arrived at the location, and carried
out the plan. These are not alternative means but simply a
sequence of events which collectively make up the alleged
relies on State v. Enriquez, 46 Kan.App.2d 765, 266
P.3d 579 (2011), in which a jury found a defendant guilty of
conspiracy to commit first-degree murder. The district court
in that case instructed the jury it could find Enriquez or