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State v. Dixon6/3/2005
of discussion as to when this gas was purchased and when these statements were made that are supposedly attributed to the defendant about things going up in flames and that type, and the jury could certainly conclude that that occurred after the first entrance but prior to the second entrance or it could conclude that it was prior to the first entrance into the apartment. But again all we're dealing with is an intent here, not the actual carrying out of the act, and so I'm going to allow it to go as charged because the State is entitled to present to the jury all theories of its case."
On appeal, there are two parts to Dixon's argument. The first is his right to a unanimous verdict. Dixon argues that the jury should have been required to unanimously agree on the intent with which he entered Alicia's apartment. He concedes that jury unanimity is not required as to which of alternative means by which a crime was committed, but he argues that the rule ought to be changed. The rule has been confirmed at least as recently as March 2004 in State v. Morton, 277 Kan. 575, 86 P.3d 535 (2004). There is no merit to the first part of the argument. For the second part, Dixon argues that there is no evidence that he entered Alicia's apartment with the intent to commit aggravated arson. The State fails to address the issue of evidence of intent to commit aggravated arson.
For the proposition that the trial court's including alternative means for which there is no evidence requires reversal of his burglary convictions, Dixon cites State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), where the court stated: "'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.]" (Emphasis added.) "'In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.' [Citations omitted.]" State v. Hoge, 276 Kan. 801, 813, 80 P.3d 52 (2003) (quoting Timley, 255 Kan. at 289).
The trial judge seems to have believed there was a dispute about whether the bucket of gasoline was purchased before or after the first burglary, but Hall, Hayes, and Griffin all testified that it was purchased after the first burglary and before Hall and Hayes were taken to the residence of Hall's friend. The time indicated on the receipt for the gasoline was 4:23 a.m., and Hall testified that he thought the first burglary occurred an hour or two after Fatty's closed at 2 a.m. The trial judge also seems to have believed that there was evidence of defendant's making statements "about things going up in flames" that the jury could conclude were made before the first burglary. The evidence the trial judge had in mind, however, seems to be Griffin's testimony, which is linked to the bucket of gasoline. The pertinent questions and answers were as follows:
"Q: [Prosecutor:] Did the defendant ever say what his plan was with the gasoline, the defendant?
"A: [Griffin:] No, he didn't.
"Q: Okay. I want you to go to 00 -- get the other notebook here. On the second page, go to 00:35:42.
"A: 35:42? 00:35:42?
"Q: Yes, sir. Would you read a couple of lines past that, as well?
"A: (The witness complied with the request.)
"Q: Did the defendant tell you what his plan was with the gasoline?
"A: No, he didn't. I overheard Wallace Dixon say he would burn her -- he would burn up the yard or burn the apartment.
"Q: Referring to the gasoline?
"A: Maybe, yes.
"Q: Would you read o
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