Alternative Means of Felony
"Where a single offense may be committed in more than one way, there must be jury unanimity as to the crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means." State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1998) (citing State v. Timley, 255 Kan. 286, Syl. P1, 875 P.2d 242 );
see also, e.g., State v. Higgenbotham, 264 Kan. 593, 609, 957 P.2d 416 (1998) (test is whether rational factfinder could have found each means beyond a reasonable doubt).
The court used more emphatic language in State v. Garcia, 243 Kan. 662, Syl. P6, 763 P.2d 585 (1988): "A general verdict of guilty must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient."
However, in State v. Grissom, 251 Kan. 851, 892, 840 P.2d 1142 (1992), the court disapproved Garcia, relying on Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991).
In Griffin, the defendant was charged with a single count of conspiracy, with dual aims of hindering the IRS and the Drug Enforcement Agency in their official duties.
At trial, the Government failed to produce any evidence to prove interference with the Drug Enforcement Agency. the jury returned a general guilty verdict against Griffin and her two codefendants. 502 U.S. at 47-48.
The Court affirmed the conviction, concluding 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. See Griffin, 502 U.S. at 60.
The Court concluded there is a commonsense reason to distinguish between a jury instruction which misstates the law and one which presents a theory of conviction not supported by the evidence. 502 U.S. at 59.
While the jury would not discern a mistake in the law as charged to them, a court may be more confident the jury would reject a legal theory not supported by the facts. 502 U.S. at 59-60.
Grissom followed Griffin's reasoning and concluded that where the State charged the defendant with murder, alleging alternative means of felony or premeditation, evidence of premeditation alone was enough to preserve the verdict. Grissom, 251 Kan. at 893. the Tenth Circuit has relied upon Griffin as well.
See, e.g., U.S. v. Hanzlicek, 187 F.3d 1228, 1236 (10th Cir. 1999) (error permissible if harmless beyond a reasonable doubt).