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State v. Dixon6/3/2005
[Citations omitted.]"'
"Under the doctrine set out in Timley, the record must contain substantial competent evidence proving all three means charged in order to uphold a conviction for kidnapping.
"Despite the language of Timley, courts of appeal have attained a degree of confidence in jury verdicts of guilt in cases where there is overwhelming evidence supporting the conviction under one of the alternative means. Those courts have concluded that it was harmless error in such cases for the trial court to instruct on all alternatives.
"Our Supreme Court dealt with such a scenario in State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992). The Grissom court held that a general verdict of first-degree murder could be upheld if there was sufficient evidence to convict the defendant of either first-degree premeditated murder or felony murder, and the State was not required to prove both. 251 Kan. at 891.
"Grissom adopted the view taken by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 59-60, 116 L.Ed. 2d 371, 112 S.Ct. 466 (1991), with the following:
'"Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law--whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation omitted]. . . ."
'" f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction."' 251 Kan. at 892.
"A recent 10th Circuit Court of Appeals opinion involving convictions for various conspiracy and mail fraud charges ruled that it was harmless error under the facts of that case where the trial court submitted a properly defined, although factually unsupported, legal theory to the jury along with a properly supported basis of liability. See United States v. Hanzlicek, 187 F.3d 1228, 1236 (10th Cir. 1999).
"This court, in State v. Ice, 27 Kan. App. 2d 1, 6, 997 P.2d 737 (2000), when pondering a rape conviction, after reviewing Griffin, concluded that, where one of the possible bases of conviction was neither unconstitutional nor illegal, but 'merely unsupported by sufficient evidence,' there is no constitutional problem with upholding the conviction. The Ice court distinguished its opinion from Griffin with the following:
'This case differs from those where there was strong evidence supporting one theory and none on another, such as in Griffin. In a Griffin situation, one can reasonably assume the jury did not behave capriciously and convict on a theory in which there was no evidence, when there was strong evidence supporting another theory.' 27 Kan. App. 2d at 7.
"The task before the jury in this case was to determine whether Johnson was guilty of kidnapping. One cannot tell from the verdict what the basis for that verdict is; however, under the cases cited above, this court can reasonably conclude the jury picked the basis of kidnapping by threat which is supported by overwhelming evidence, rather than by mea
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