State v. Brown, 284 P.3d 977

Brown was convicted of aggravated indecent liberties with a child and lewd and lascivious behavior based on evidence from a weekend with an 8-year-old girl.
The court applied a super-sufficiency alternative means rule, requiring evidence for each means supported by jury instructions.
Brown argued the statute’s language created multiple distinct alternative means; the State argued they were means within a means or non-material descriptors.
The State sought to reopen its case to prove Brown’s age, a necessary element for Jessica’s Law enhancement, which Brown challenged as prejudicial.
The court addressed issues on prosecutorial misconduct, lifetime postrelease supervision, and Apprendi-age considerations, ultimately affirming most judgments while vacating one supervision sentence.
The majority adopts a structured approach to determine when a statute creates alternative means, focusing on distinct material elements versus descriptive within-means language.
Brown’s arguments center on whether the language “either the child or the offender, or both” creates alternative means; the State contends it is a descriptive within-means option or atypical case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the statute create alternative means, triggering Timley’s super-sufficiency rule?	Brown argues the disjunctive terms create multiple means.	State contends the language may be means within a means or non-material.	Not all disjunctives create alternative means; depends on legislative intent and material elements.
Was reopening the State’s case to prove age prejudicial, and proper under Murdock factors?	Brown challenges reopening as prejudicial.	State argues reopening aided jury determination; not prejudicial.	Reopening was not an abuse of discretion; helped prove age for Jessica’s Law, no prejudice.
Did prosecutorial misconduct require reversal or is harmless?	Brown claims misconduct denied fair trial.	State asserts misconduct was mild and harmless.	Misconduct occurred but was harmless beyond reasonable doubt.
Should lifetime postrelease supervision be imposed with off-grid life sentence?	Brown argues improper postrelease supervision.	Journal entry error, not announced sentence.	Vacate journal entry; remand to align with announced sentence.
Did trial court violate Apprendi by using prior convictions at sentencing without jury findings?	Age or prior convictions used post-conviction without jury mandate.	Previous cases approve use of prior convictions for sentencing enhancements.	Convictions affirmed; enhancement permissible under existing precedents.

Schad v. Arizona, 501 U.S. 624 (U.S. 1991) (alternative theories of liability may be considered; material elements vs. immaterial facts)
State v. Timley, 255 Kan. 286 (Kan. 1994) (original framework for alternative means and jury unanimity)
Wright v. Kansas, 290 Kan. 194 (Kan. 2010) (reaffirmed Timley approach; later modified by Wright decision)
State v. Dixon, 279 Kan. 563 (Kan. 2005) (harmless error approach to alternative means (discussed, later disapproved in Wright))
State v. Grissom, 251 Kan. 851 (Kan. 1992) ( Griffin-based rationale for severing unsupported alternative theory when others supported guilt)
State v. Linehan, 147 Wash. 2d 638 (Wash. 2002) (distinction between embezzlement as a separate element vs. within theft definitions)
State v. Peterson, 168 Wash. 2d 763 (Wash. 2010) (discussed whether disjunctive terms create true alternative means vs. within means)
Linehan (Linehan), 147 Wash. 2d 638 (Wash. 2002) (emphasized distinction between material elements and descriptive definitional language)
Morningstar v. State, 289 Kan. 488 (Kan. 2009) (age as an element under enhanced offense sentencing; admissibility and impact on sentencing)