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State v. Shay

Court of Appeals of Kansas

February 8, 2019

State of Kansas, Appellee,
v.
Scott W. Shay, Appellant.

         SYLLABUS BY THE COURT

         1. In an alternative means case, when a single act may be committed in more than one way, the jury must be unanimous on guilt for the single crime charged, but the jury does not have to be unanimous as to the means by which a crime is committed, as long as there is sufficient evidence of each alternative means.

         2. When the defendant is charged with aggravated criminal sodomy committed while the victim was unconscious or physically powerless, the victim's testimony that she was too scared to move does not satisfy the statutory element that the crime was committed while the victim was unconscious or physically powerless.

         3. When there is insufficient evidence at trial to support the defendant's conviction of each alternative means of committing a crime, the proper remedy is to reverse the defendant's conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial.

          4. It is clear error to instruct a jury that it will enter a verdict of guilty if it has no reasonable doubt about the defendant's guilt. But using the word should is legally appropriate.

          Appeal from Miami District Court; Amy L. Harth, judge.

          Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

          Rebecca S. Craig, assistant county attorney, Jason A. Vigil, assistant county attorney, Elizabeth H. Sweeney-Reeder, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Atcheson, P.J., Malone and Leben, JJ.

          MALONE, J.

         Scott W. Shay appeals his convictions of rape and aggravated criminal sodomy of S.P. He raises two issues on appeal. First, Shay claims that because the State failed to present sufficient evidence that S.P. was unconscious or physically powerless, one of the alternative means of committing both charges, both convictions must be reversed. Second, Shay claims the district court erred in overruling his objections to jury instructions discouraging the jury from exercising its power of nullification.

         For reasons we will explain more fully in this opinion, we agree with Shay's first claim, but only as to his aggravated criminal sodomy conviction. Thus, we affirm Shay's rape conviction, but we reverse his aggravated criminal sodomy conviction and remand for a new trial on that charge, only on the alternative means supported by sufficient evidence in the first trial.

         Factual and Procedural Background

         Shay, who was 49 years old at the time of the incident, was a long-time friend of S.P.'s family. S.P. considered Shay a father figure and spent every other weekend with him. S.P. would discuss things with Shay which she did not feel comfortable speaking to her mother about, such as her relationship with boys.

         In early August 2015, S.P., her friend, T.M., and Shay went camping to celebrate S.P.'s 16th birthday. To start the day, they went swimming at a nearby lake. After swimming, S.P., T.M., and Shay went to Shay's farm to pick up his horse trailer, which he had converted into a camper. The group then went to a campground at a local lake.

         After arriving at the campground, the girls asked Shay to go get them some alcohol from the liquor store. Shay returned with a couple six-packs of Twisted Lemonade, S.P.'s favorite alcoholic drink. The group began drinking and S.P. later testified that she had four to seven alcoholic lemonades.

         Later, S.P. decided that she wanted to go skinny dipping in the lake. S.P., T.M., and Shay walked to the water and the girls asked Shay to turn around while they took off their clothes. Shay did not swim with the girls. After swimming for a little while, the girls told Shay ...


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