The opinion of the court was delivered by
The Court of Appeals affirmed Juan Aguirre’s convictions of rape, aggravated indecent liberties with a child, and aggravated intimidation of a victim. State v. Aguirre,
While we disagree with some of the panel’s rationale, we agree with its conclusion that K.S.A. 21-3832, which defines the crime of intimidation of a witness, does not contain the alternative means alleged by Aguirre. Specifically, applying State v. Brown,
We reach a similar conclusion regarding the definition of “malice” contained in K.S.A. 21-3831(b), which requires (1) acting with an intent to vex, annoy, harm, or injure or (2) acting with an intent to thwart or interfere in any manner with the orderly administration of justice. While we reject the panel’s conclusion that alternative mental states cannot form alternative means of committing a crime, we nevertheless conclude that the statutory definition of malice does not create such means. Instead, it simply elaborates on that element of tire crime.
Because the evidence was sufficient to establish that Aguirre attempted to prevent or dissuade his victim from reporting his crimes, and that he acted with the requisite malice in doing so, we affirm Aguirre’s conviction for aggravated intimidation of a witness.
Factual and Procedural Background
In December 2006, law enforcement officers were investigating allegations that the victim in this case, N.R., and her brother, A.R., were being physically abused by their mother and their mother’s boyfriend, Aguirre. David Sander, an investigator with the Finney County Sheriffs Office, interviewed N.R. at her school.
During the interview, 15-year-old N.R. disclоsed that Aguirre had been sexually abusing her for several years. Specifically, N.R. reported that Aguirre would try to look at her while she was in tire shower and that Aguirre had touched her inappropriately on several occasions. N.R. also disclosed that she and Aguirre had sexual intercourse sometime between Thanksgiving and Christmas of 2002, when N.R. was 11 years old. Immediately after the intercourse, Aguirre told N.R. not to tell anyone about the incident. Aguirre also told N.R. that he would get her in trouble with her
During a follow-up interview with Sander in February 2007, N.R. recanted her disclosures. She claimed she lied about Aguirre sexually abusing her because she did not like Aguirre, he was too strict with her, he complained about the way she dressed, and he would not let her go out when she wanted tо. N.R. denied that anyone had pressured her to change her story.
In March 2007, the State charged Aguirre with rape, aggravated indecent liberties with a child, and aggravated intimidation of a witness or victim. Regarding the last charge, the State alleged:
“That on or about the 1st day of November, 2002 through the 24th day of December, 2002, in Finney County, Kansas, Juan Manuel Aguirre, then and there being present did unlawfully, knowingly, and maliciously prevent or dissuade or attempt to prevent or dissuade a victim, witness or person acting on behalf of a victim or a witness, NJR (DOB: XXXXX/T991), from making a report of a crime or attempted crime, to a law enforcement, probation, parole, correctional, community correction services or judicial officer, in violation of K.S.A. 21-3833, Aggravated Intimidation of a Witness or Victim, a severity level 6 person felony.”
At trial, Sander and N.R. testified about N.R/s disclosures in her first interview. Sander and N.R. also testified that N.R. recanted those disclosures in her second interview. N.R. testified she told Sander during the first interview that Aguirre told her not to tell anyone about the sexual intercourse that took place in 2002. Additionally, the State admitted N.R/s written statement without objection. In that statement, N.R. said that after the first incident of sexual intercourse, Aguirre told her not to tell her mother anything.
Aguirre, who testified on his own behalf, denied the sexual abuse allegations and suggested N.R. made false allegations because she did not like him.
Regarding the charge of aggravated intimidation of a victim, the district court instructed the jury:
“The defendant is charged in count two with the crime of aggravated intimidation of a victim. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant prevented or dissuaded, or attempted to prevent or dissuade, a victim, NJR, from making a report of a crime against an individual, NJR,*103 to any law enforcement, probation, parole, correctional community correction services or judicial officer;
2. That the victim, NJR, was under 18 years of age;
3. That the defendant did so knowingly and maliciously; and
4. That this act occurred on or about the 1st day of November, 2002, through the 24th day of December, 2002, in Finney County, Kansas.
“As used in this instruction, maliciously means with an intent to vеx, annoy, harm or injure in any way another person, or with an intent to thwart or interfere in any manner with the orderly administration of justice.”
The jury found Aguirre guilty as charged. The district court imposed a controlling prison sentence of 672 months and ordered the sentence served consecutive to a 130-month prison sentence in another case.
Aguirre directly appealed, raising several issues. The Court of Appeals rеjected each of Aguirre’s arguments and affirmed his convictions and sentence. Aguirre,
Discussion
In State v. Timley,
“ ‘[Wjhere a single offense may be committed in more than one way, there must be jury unanimity аs 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.]’ ”255 Kan. at 289 (quoting State v. Kitchen,110 Wash. 2d 403 , 410,756 P.2d 105 [1988]).
Most recently, in Brown, we reiterated Timley’s alternative means rule and its corollary super-sufficiency requirement and declined the State’s invitation to reconsider Wright’s conclusion that enforcement of that rule is necessaiy to protect a criminal defendant’s statutory right to jury unanimity. Brown,
In Brown, we also refined our method of identifying alternative means within a statute. Specifically, we explained that our determination of whether а statute provides alternative means of committing a crime is governed by legislative intent, and we identified several guidelines to be used in ascertaining that intent.
The statute at issue here, K.S.A. 21-3832, provides, in relevant part:
“(a) Intimidation of a witness or victim is knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade-.
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(2) any witness, victim or person acting on behalf of a victim from:
(A) Malang any report of the victimization of a victim to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer or judicial officer.” (Emphasis added.)
Initially we note that Aguirre does not challenge the application of section (a)(2)(A) of the statute. Instead, he focuses on section (a), contending it creates two sets of alternativе means and the State was required to present sufficient evidence as to both sets of alternative means.
First, Aguirre argues aggravated intimidation of a victim is an alternative means crime becausе it criminalizes (1) preventing or dissuading or (2) attempting to prevent or dissuade a victim from reporting a crime. In support of his argument, Aguirre cites State v. Stevens, 285 Kan. 307, 321,
In Brown, we stated:
“In examining legislativе intent, a court must determine for each statute what the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, whеn incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction. [Citation omitted.]”295 Kan. at 194 .
Applying Brown’s refined alternative means analysis to the DUI statute at issue in Ahrens, wе concluded that the legislature did not intend to create alternative means of committing DUI by placing the disjunctive “or” between the term “operate” and the phrase “attempt to operate” in K.S.A. 2008 Supp. 8-1567(a). Instead, we concluded the legislature employed the phrase “operate or attempt to operate” in 8-1567(a) to encompass a broader set of factual circumstanсes that could establish an essential element of DUI— driving. See Ahrens,
In rejecting Aguirre’s alternative means argument, the panel reasoned:
“K.S.A. 21-3833 defines aggravated intimidation of a victim or witness to encompass both the successful intimidation and the attempted but unsuccessful intimidation. By so doing, it is clear that whether the crime is committed is not a function of how effective the intimidation was. Rather, there is but one criminal act: to intimidаte a victim or witness with the intent to deter the reporting of a crime, whether or not the intimidation is successful'. One does not commit the crime of intimidating a witness by alternative means of either doing it or merely trying to do it.” Aguirre,45 Kan. App. 2d at 148 .
The panel further concluded that “whether the intimidation is successful or not, the gravamen of the statute is the act of intimidation.”
The panel’s decision is persuasive, particularly when considered in light of Brown. There, we noted that stаtutory alternatives are not alternative means if the alternatives do not state “alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements.” Brown,
Aguirre also relies on State v. Quinones,
Instead, the Quinones panel was сoncerned with whether (1) K.S.A. 21-3833 requires proof that the witness actually perceived the threat; and (2) whether the inclusion of the “attempt” language in the statute required the State to prove the elements defined in the attempt statute, K.S.A. 21-3301(a).
It does not appear that Quinones disagreed with the State’s suggestion that die statute provided for alternative means and that attempt was one of those means. Instead, Quinones simply disagreed with the State’s assertion that the attempt elements did not apply. In any event, die Quinones panel concluded that because the crime of intimidation of a witness encompasses an attempt to prevent or dissuade the witness from testifying at trial, the State is not required to set forth or prove the elements of the attempt statute.
The statutory definition of “malice” does not create alternative means of committing aggravated intimidation of a victim.
Next, Aguirre argues the State alleged аlternative means to support the specific intent element of the crime, i. e., that Aguirre acted maliciously by either (1) acting with an intent to vex, annoy, harm, or injure N.R.., or (2) acting with an intent to thwart or interfere in any manner with the orderly administration of justice.
The State contends the definition of “malice” does not create alternative means because “the issue of alternative means has to do with different acts which the defendant may have done to accomplish the crime” rather than “the state of mind of the person committing the criminal act.”
The relevant statutory language defines the crime of aggravated intimidation of a witness as
“knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade: ... (2) any witness, victim or person acting on behalf of a victim from:
(A) Malang any report of the victimization of a victim to any law еnforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer or judicial officer.” (Emphasis added.) K.S.A. 21-3832.
On its face, the phrase “knowingly and maliciously” does not create alternative means and Aguirre does not suggest otherwise. Instead, he finds alternative means in the statute defining the term “malice,” K.S.A 21-3831(b). That statute provides that for purposes of the crime of aggravated intimidation of a victim, “ ‘[mjalice’ means an intent to vex, annoy, harm or injure in any way another person or an intent to thwart or interfere in any manner with the orderly administration of justice.” K.S.A. 21-3831(b). Aguirre argues tire statutory definition of “malice” creates alternative means of acting maliciously and, therefore, creates alternative means of committing the crime of aggravated intimidation of a victim.
“The concept of alternative means is based on the notion that a crime can be accomplished by more than one act. An accused can commit a battery by (among other things) punching the victim in the nose or by lacking the victim in Ae pants. If the defendant is accused of both and Aere is no unanimity instruction, we may very well have an alternative means problem. But here, Aguirre does not point to a multitude of means by which N.R. was intimidated.
“We find it a stretch to consider Ae Afferent states of mind that a defendant may have while carrying out the act of intimidation to be Afferent alternative means for committing Ae crime. The word means connotes causality between a proscribed act and its undesirable consequences; a meAod of accomplishing an end, i.e. of causing an end to occur. The defendant battеrs Ae victim by means of either punching or kicking. The mental state of malice in its various manifestations Aat a defendant may have while doing the prohibited act hardly seems to fit Ae notion of alternative means for committing Ae crime.” Aguirre, 45 Kan. App. 2d at 149.
Aguirre specifically takes issue with the panel’s conclusion that “[t]he various manifestations of the mental state of malice that a defendant may have while doing the prohibited act do not constitute alternative mеans for committing the crime.” Aguirre,
On this point we agree with Aguirre. We have recently clarified that, in some cases, alternative means of committing a crime can be based on alternative mental states of the defendant. See Brown,
In Brown, we clarified that there is a distinction between statutes that define tire elements of a crime and statutes that define or elaborate upon the terms used to define the crime.
The district court did not err when it denied Aguirre’s request for a unanimity instruction.
Finally, Aguirre claims the district court should have granted his request for a unanimity instruction on the specific intent element of aggravated intimidation of a victim because the jury was instructed on two alternative means by which he could have acted maliciously.
Because the statutory definition of malice does not create alternative means of committing the crime, the district court did not err when in denied Aguirre’s request for a unanimity instruction. Further, even if the jury had been presented with alternative means of malice, Aguirre would not have been entitled to a unanimity instruction. See State v. Bailey,
Judgment of the Court of Appeals affirming the district court on the issues subject to our review is affirmed in part and reversed in part. Judgment of the district court on those issues is affirmed.