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Additionally, they need to prove that the defendant acted intentionally to assist the principal in their offense. A person who unknowingly shelters a person who committed a felony will not likely be found guilty of being an accessory after the fact.

Generally, the crime does not have to actually be committed to completion. As long as the defendant aided the principal in committing the crime, and intended for the crime to be committed to completion, the defendant may be found guilty of being an accessory to a crime. An accessory charge in and of itself is not generally a felony, as a felony is a serious type of crime such as homicide. This matters because having a felony charge on a criminal record can lead to loss of various privileges and freedoms, such as being able to own a firearm and having the right to vote.

An accessory to a felony crime will generally receive a less severe sentence than what the principal will likely receive. Federal laws dictate that the penalties for an accessory to a felony crime are not to exceed half of the maximum prison sentence or fine that the principal receives.

Should the principal receive a death sentence, the accessory may be incarcerated for a maximum of up to fifteen years. States may have their own laws governing accessories to a felony. If you are being accused of being an accessory to a crime, you should immediately consult with a skilled and knowledgeable criminal defense attorney.

An experienced criminal defense attorney in your area can educate you on your rights as well as any defenses available to your specific circumstances. Additionally, an attorney can prepare the details of your case and potentially negotiate a reduced sentence. Finally, an attorney may represent you in court as needed. Travis earned his J. Travis has written about numerous legal topics ranging from articles tracking every Supreme Court decision in Texas to the law of virtual reality.

In his spare time off from the legal world and quest for knowledge, this 3rd degree black belt and certified instructor aspires to work with various charities geared towards bringing access to entertainment and gaming to all persons. Law Library Disclaimer.

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What little is known from the trial evidence is that Gonzalez pulled his car up behind the bar after eluding a police traffic stop a few minutes earlier and that the victim was shot. Nothing showed what might have been said between the victim and the car's occupants, so the State tried to prove the attempted aggravated robbery by relying on Gonzalez' text messages shortly before the killing. Arguably, the text messages and circumstances were ambiguous about whether the pair intended to rob the victim, so more was required.

We hold the evidence sufficient under our standard of review. What tied the ambiguous evidence together was the investigators' explanations about the meaning typically associated with the language in the texts, as well as a detective's testimony that one of the pair discussed pinpointing someone for a robbery. Taken together, this provided the jury a sufficient basis to infer the pair's intention to rob the victim.

As for the remaining issues, we hold they do not warrant reversal, so we affirm. He described the vehicle as a boxy, black, 4-door Chevy. As Garrett approached, the vehicle drove off. The officer reported this to dispatch and began a search. Just blocks from the traffic stop, Louis Scherzer was at a bar with family and friends. The bar's surveillance footage shows him going out the back door at a. Within the next three minutes, there were gunshots.

Scherzer emerged mortally wounded 4 from the alleyway and collapsed against the bar's front door. He pulled out his own gun and shot back. Scherzer still had his keys and wallet containing cash when he died within minutes from a single gunshot wound. The bullet entered the lower-right portion of his back and exited around the left collar bone. A witness said gunfire came from an older, boxy, black car that drove away.

People outside the bar flagged down Officer Garrett, who was still in the area looking for the car he had tried to stop. Garrett saw the car drive past the front of the bar but could not locate the vehicle after that. Later that same day, police discovered outside Gonzalez' house a car matching the description of the one involved in the traffic stop and shooting.

A trail of blood led inside the house, where officers found more blood and a. Police arrested Gonzalez at the University of Kansas Medical Center, where he went for treatment of a gunshot wound to his foot. Forensic analysis showed the gun was fired twice at the crime scene. An investigating detective testified Filiberto Espinoza, the occupant in Gonzalez' car, fired the shot that killed Scherzer, and Gonzalez shot himself in the foot.

The State's evidence tending to explain why Espinoza shot Scherzer consisted of text messages between Gonzalez and others around the time of the crime. In texts with his girlfriend from Gonzalez' phone, she asked him to come home. He told her shortly before midnight, "I got some shut [sic] to hadle [sic], baby. At a. Gonzalez told his friend to "look SC," seemingly referring to a Snapchat video he took of himself leaving the traffic stop.

When the friend asked whether "they shot at you" while he was "driving off," Gonzalez said "nah, smoked dud [sic]. When asked "[w]hat does it mean as a robbery investigator when someone says that? Espinoza as a teammate right before he says they're gonna get that paper, meaning they're going to rob someone, just multiple occasions that they are together during this entire thing.

He also mentioned that they discussed the robbery. They were together during the robbery. They were together when Mr. Scherzer was—was shot during that attempted robbery. Do you have any evidence that Mr. Espinoza, shoot him? Gonzalez said to Mr. Espinoza, I want his money? And that evidence would be what? That evidence would be his admission. That evidence would be the fact that they discussed pointing out Mr. Scherzer, identifying, pointing—pinpointing a victim, targeting a victim for the robbery that they attempted to do when they murdered Mr.

He's opened the door for his statement, too. No statements like the ones described at the bench conference were admitted at trial. After the State rested, Gonzalez put on testimony from his mother, seeking to establish he had consumed marijuana and a Xanax that might have impaired him at the time of the crimes. Gonzalez also sought to prove his intoxication through testimony 7 from Espinoza, but this was prevented when Espinoza invoked his Fifth Amendment privilege against self-incrimination.

In closing arguments, the State focused on the homicide. It argued the jury should convict Gonzalez of premeditated murder because the evidence showed Scherzer was "shot dead in the back without a chance to defend himself," which would not have happened if it was just a robbery gone wrong. It also asserted if the jury did not convict on that offense, it should still find him guilty of felony murder, for which it argued the jury needed only to find he was "actively participating with the goal to achieve an aggravated robbery.

She also contended Gonzalez' phrase "trying to get the paper means money, robbery at that time of day. He also argued the pair did not intend to kill because only one shot was fired at Scherzer. The jury convicted Gonzalez of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The district court imposed a hard 25 life sentence for the felony-murder conviction and two consecutive month prison terms for the conspiracy and attempted aggravated robbery convictions.

Gonzalez timely appealed directly to this court, raising seven issues we have consolidated into six and reordered: 1 whether sufficient evidence supports the 8 convictions; 2 whether the attempt and conspiracy convictions were multiplicitous; 3 whether the district court's aiding and abetting jury instruction constituted clear error; 4 whether the district court erroneously permitted Espinoza to invoke his Fifth Amendment privilege against self-incrimination because he had already pleaded guilty and been sentenced for his participation in the crimes; 5 whether the State's peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and 6 whether cumulative error requires reversal.

Jurisdiction is proper. See State v. Harris, Kan. Louis, Kan. Gonzalez questions whether an adequate evidentiary basis existed for the jury to find beyond a reasonable doubt that he and Espinoza intended to rob Scherzer at the time of the shooting. Standard of review "When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence 'in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

First, we consider the evidence supporting an intent to rob—an element necessary for both the felony-murder and attempted aggravated robbery convictions. Second, we examine the evidence supporting the conspiracy conviction.

We hold the evidence sufficient to support all convictions. The evidence established the pair's intent to rob. Aggravated robbery is "knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person. First-degree felony murder "is the killing of a human being committed.

Aggravated robbery is an inherently dangerous felony. An attempt requires three elements: an overt act toward perpetrating the crime, intent to commit the crime, and failure to complete the crime. State v. Netherland, Kan. The State's case against Gonzalez proceeded on an aider and abettor theory. This means the State had to prove he or another, for whose conduct he was criminally 10 responsible, killed Scherzer and that the killing occurred while Gonzalez or another, for whose conduct he was criminally responsible, was trying to commit aggravated robbery.

See Netherland, Kan. The State did not have to prove Gonzalez "personally satisfied all of the elements of the underlying crime or that he fired the fatal shot. Gonzalez contends there was insufficient evidence a robbery was being attempted when the shooting occurred.

He points out there is no video of a robbery; no eyewitness testimony that a robbery was underway; no proof of a struggle between himself or Espinoza and Scherzer; and no social media, text, or other forms of communication that "unambiguously on its face, evinced either a plan to commit a robbery before the shooting, or confirms a robbery was the incident taking place when Espinoza and Scherzer exchanged gunfire.

We observe there does not seem to be any dispute as to whether there was sufficient evidence of an overt act in furtherance of the crime—if Gonzalez and Espinoza intended to rob Scherzer. Certainly the cumulative evidence about what happened behind the bar is sufficient for that element.

And the jury could easily have concluded from the evidence that a robbery was not completed. So this leaves us with the question whether a rational fact-finder could have found beyond a reasonable doubt that Gonzalez intended to rob someone. Intent is usually proven by inference arising from circumstantial evidence because direct evidence of a defendant's state of mind is rarely available. Thach, Kan. And when that is the case, the question becomes whether the circumstantial evidence is substantial or sufficient enough to sustain the conviction.

We have held that circumstantial evidence "'need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. Phillips Pipeline Co. Doyle, Kan. An appellate court must determine whether the circumstances themselves are proved or inferred from other circumstances when a conviction is wholly based on circumstantial evidence.

And a court must remain vigilant against inference stacking, which is impermissible because when the State asks a jury to make a presumption based on another presumption, the State fails to carry its burden to present sufficient evidence. Banks, Kan. In Gonzalez' case, proof of intent to commit robbery admittedly begins with some ambiguous circumstances. His text messages on their face convey no such intent, and Scherzer's property was not taken.

Likewise, while the evidence shows Gonzalez was in the alleyway late at night, minutes earlier he had evaded a traffic stop several blocks away and Officer Garrett was in the area looking for him. But what gives all the evidence a concrete context is Detective Vaughn's testimony that either Gonzalez or Espinoza said they had discussed finding a victim that night for a robbery.

This testimony was admitted without objection. In the light most favorable to the State, we hold a rational fact-finder could have concluded beyond a reasonable doubt Gonzalez intended to rob Scherzer. See Harris, 12 Kan. Taken as a whole, sufficient evidence existed to sustain both the felony- murder and attempted aggravated robbery convictions.

The evidence established an agreement to commit aggravated robbery. Conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. A formal agreement is not necessary. It is enough if the parties tacitly come to an understanding about the unlawful purpose, which can be inferred from sufficiently significant circumstances.

Sharp, Kan. While the commission of a conspiracy requires such person or a coconspirator's overt act in furtherance of the conspiracy, Gonzalez does not dispute the evidence's sufficiency to prove an overt act. See K. For that reason, our issue is whether the evidence supplied a basis for a rational jury to find beyond a reasonable doubt that Gonzalez entered into an agreement with Espinoza to commit an aggravated robbery.

The investigators' explanations for the text messages exchanged before the shooting show Gonzalez and Espinoza operated as "teammates" in an enterprise to "get paper. Taken together, we hold the evidence was sufficient for a rational fact-finder to conclude Gonzalez entered into an agreement with Espinoza to commit an aggravated robbery.

However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime. Gonzalez contends the aiding and abetting instruction improperly lowered the State's burden of proof on the specific intent crimes with which he was charged. He points specifically to the instruction's language that "[t]he person is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime if the person could reasonably foresee the other crime as a probable consequence of committing or attempting to commit the intended crime.

Ward, Kan. The first step in the progression can be quickly disposed of because Gonzalez did not object to the instruction at trial, so any error is reversible only if the instruction is clearly erroneous. Discussion To convict a defendant of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal.

Littlejohn, Kan. Plummer, Kan. The instruction in Gonzalez' case accurately reflected Kansas' aiding and abetting statute. Engelhardt, Kan. But it did not accurately state the applicable law, based on our caselaw limiting the statute's use when defendants are charged with aiding and abetting specific intent crimes.

See, e. Overstreet, Kan. In Engelhardt, the victim died after he was stabbed multiple times in the head and chest. At trial, there was conflicting evidence about who killed the victim—the defendant or the accomplice. The defendant argued the instruction regarding reasonably foreseeable crimes committed in pursuit of the intended crime lowered the State's burden of proof on the premeditated first-degree murder charge and was confusing because he was also charged with several additional counts, including kidnapping, criminal threat, and battery.

The defendant claimed the instruction did not specify which crime was the intended crime. The court held it was improper to give the instruction because it effectively operated as a felony-murder instruction, but the jury was not instructed on felony murder or the underlying felony, i. In agreeing with the defendant, the Engelhardt court explained: "if a felony- murder theory had been advanced by the State and instructed upon, it is well established that PIK Crim.

For support, the court cited State v. Gleason, Kan. There, the Gleason court 16 held there was no error in failing to give the reasonable foreseeability instruction since in a felony-murder case when "the underlying felony is one inherently dangerous to human life.

The trial court gave the jury both aiding and abetting instructions—the one concerning crimes intended by the aider and abettor, and the one concerning reasonably foreseeable crimes other than the intended crime. The Overstreet court held this was error because, as in Engelhardt, the defendant was charged "with a specific-intent crime under an aiding and abetting theory.

The court reasoned the foreseeability instruction—indicating the jury did not need to find Overstreet possessed the specific intent of premeditation if it found premeditated murder was a reasonably foreseeable consequence of aggravated assault—"negated the State's burden to prove an essential element of the crime charged: premeditation. Moreover, "the fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.

In Gonzalez' case, other than felony murder and conspiracy, three of the crimes on which the jury was instructed required specific intent: premeditated first-degree murder, intentional second-degree murder, and attempted aggravated robbery. Deal, Kan. Gutierrez, Kan. But the conspiracy to commit aggravated robbery crime here needed only to be committed "knowingly. Butler, Kan. Based on this, the instructions as given did nothing to inform the jury which of the crimes 17 submitted to it for deliberation was an "intended" crime and which might have been the "other crime" committed while carrying out the intended crime.

Despite this, the State argues the instruction was not error because the reasonably foreseeable requirement applied only to the "unintended" crimes and not the "intended" crimes and the jury could have only associated the instruction to the felony murder. But this is an argument for harmlessness, not for the instruction's legal appropriateness.

And even if the foreseeable instruction could be viewed as limited only to felony murder, it still misstated the law because elements of felony murder do not require a jury to find the killing was reasonably foreseeable. See Gleason, Kan. We hold this instruction was error since it was not legally appropriate.

That brings us to consider whether the error is clear error because there was no objection from Gonzalez to giving it. To declare clear error, a reviewing court must be firmly convinced the jury would have reached a different verdict without the error. Gonzalez argues the instructional error requires reversal of all his convictions because the prosecutor, he believes, based her entire theory of guilt on aiding and abetting.

To support this claim, he points to the prosecutor's statements that Scherzer would not be dead were it not for Gonzalez' assistance providing Espinoza with a gun and transportation. He then notes the prosecutor referenced "the erroneous aiding and abetting foreseeability" instruction when discussing the felony-murder charge and arguing death was a "reasonably foreseeable" consequence of robbing someone with a handgun. This, he claims, was the prosecutor's "ace-in-the-hole" because it allowed the State to gloss 18 over what he believes was the scant evidence showing a robbery was planned or attempted.

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The difference lies in that an accessory is generally not present when the crime is being committed, whereas an accomplice is present when the crime is being committed. Additionally, an accessory to a crime may be subject to fewer or less severe penalties than an accomplice. The differences between an accessory to a crime and a conspiracy can vary. In general, during a conspiracy, the conspirator and another person plan to commit a crime in the future.

However, the crime does not actually have to ever be committed or even be started. Once the conspirators have agreed to commit a crime, and both intend for the crime to actually be committed, a conspiracy has occurred. As previously mentioned, a person may be an accessory to a crime before the crime is committed, or they may be an accessory after the fact.

An accessory after the fact is a person who assists another person in escaping or evading arrest after the commission of a crime has taken place. The accessory after the fact may not have been part of the original crime, but could also face criminal charges if they aided in the escape of the other defendants. To further differentiate between an accessory before the fact, and an accessory after the fact, an accessory to a crime before the fact is one who:.

An example of this would be a person preparing a weapon for an assault, or provides the matches for someone else to commit arson. An example of this would be the driver of a getaway car. Assistance may be financial, material, or even emotional support of the principal actor. The elements that designate a person as an accessory to a crime vary from state to state according to their own statutes.

In general, for a person to be convicted for being an accessory to a felony, the prosecutor will need to prove that the following three elements have been met:. The prosecutor needs to prove, beyond a reasonable doubt, that the person accused had knowledge that the crime was to be committed or was already committed. Additionally, they need to prove that the defendant acted intentionally to assist the principal in their offense.

A person who unknowingly shelters a person who committed a felony will not likely be found guilty of being an accessory after the fact. Generally, the crime does not have to actually be committed to completion. As long as the defendant aided the principal in committing the crime, and intended for the crime to be committed to completion, the defendant may be found guilty of being an accessory to a crime.

An accessory charge in and of itself is not generally a felony, as a felony is a serious type of crime such as homicide. This matters because having a felony charge on a criminal record can lead to loss of various privileges and freedoms, such as being able to own a firearm and having the right to vote. An accessory to a felony crime will generally receive a less severe sentence than what the principal will likely receive.

Federal laws dictate that the penalties for an accessory to a felony crime are not to exceed half of the maximum prison sentence or fine that the principal receives. Should the principal receive a death sentence, the accessory may be incarcerated for a maximum of up to fifteen years. States may have their own laws governing accessories to a felony. If you are being accused of being an accessory to a crime, you should immediately consult with a skilled and knowledgeable criminal defense attorney.

An experienced criminal defense attorney in your area can educate you on your rights as well as any defenses available to your specific circumstances. Additionally, an attorney can prepare the details of your case and potentially negotiate a reduced sentence. Finally, an attorney may represent you in court as needed. Travis earned his J. Travis has written about numerous legal topics ranging from articles tracking every Supreme Court decision in Texas to the law of virtual reality.

In his spare time off from the legal world and quest for knowledge, this 3rd degree black belt and certified instructor aspires to work with various charities geared towards bringing access to entertainment and gaming to all persons. Law Library Disclaimer. Can't find your category? Police arrested Gonzalez at the University of Kansas Medical Center, where he went for treatment of a gunshot wound to his foot.

Forensic analysis showed the gun was fired twice at the crime scene. An investigating detective testified Filiberto Espinoza, the occupant in Gonzalez' car, fired the shot that killed Scherzer, and Gonzalez shot himself in the foot. The State's evidence tending to explain why Espinoza shot Scherzer consisted of text messages between Gonzalez and others around the time of the crime.

In texts with his girlfriend from Gonzalez' phone, she asked him to come home. He told her shortly before midnight, "I got some shut [sic] to hadle [sic], baby. At a. Gonzalez told his friend to "look SC," seemingly referring to a Snapchat video he took of himself leaving the traffic stop. When the friend asked whether "they shot at you" while he was "driving off," Gonzalez said "nah, smoked dud [sic]. When asked "[w]hat does it mean as a robbery investigator when someone says that?

Espinoza as a teammate right before he says they're gonna get that paper, meaning they're going to rob someone, just multiple occasions that they are together during this entire thing. He also mentioned that they discussed the robbery. They were together during the robbery. They were together when Mr. Scherzer was—was shot during that attempted robbery. Do you have any evidence that Mr. Espinoza, shoot him? Gonzalez said to Mr. Espinoza, I want his money? And that evidence would be what?

That evidence would be his admission. That evidence would be the fact that they discussed pointing out Mr. Scherzer, identifying, pointing—pinpointing a victim, targeting a victim for the robbery that they attempted to do when they murdered Mr. He's opened the door for his statement, too. No statements like the ones described at the bench conference were admitted at trial.

After the State rested, Gonzalez put on testimony from his mother, seeking to establish he had consumed marijuana and a Xanax that might have impaired him at the time of the crimes. Gonzalez also sought to prove his intoxication through testimony 7 from Espinoza, but this was prevented when Espinoza invoked his Fifth Amendment privilege against self-incrimination. In closing arguments, the State focused on the homicide. It argued the jury should convict Gonzalez of premeditated murder because the evidence showed Scherzer was "shot dead in the back without a chance to defend himself," which would not have happened if it was just a robbery gone wrong.

It also asserted if the jury did not convict on that offense, it should still find him guilty of felony murder, for which it argued the jury needed only to find he was "actively participating with the goal to achieve an aggravated robbery. She also contended Gonzalez' phrase "trying to get the paper means money, robbery at that time of day. He also argued the pair did not intend to kill because only one shot was fired at Scherzer. The jury convicted Gonzalez of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery.

The district court imposed a hard 25 life sentence for the felony-murder conviction and two consecutive month prison terms for the conspiracy and attempted aggravated robbery convictions. Gonzalez timely appealed directly to this court, raising seven issues we have consolidated into six and reordered: 1 whether sufficient evidence supports the 8 convictions; 2 whether the attempt and conspiracy convictions were multiplicitous; 3 whether the district court's aiding and abetting jury instruction constituted clear error; 4 whether the district court erroneously permitted Espinoza to invoke his Fifth Amendment privilege against self-incrimination because he had already pleaded guilty and been sentenced for his participation in the crimes; 5 whether the State's peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and 6 whether cumulative error requires reversal.

Jurisdiction is proper. See State v. Harris, Kan. Louis, Kan. Gonzalez questions whether an adequate evidentiary basis existed for the jury to find beyond a reasonable doubt that he and Espinoza intended to rob Scherzer at the time of the shooting.

Standard of review "When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence 'in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. First, we consider the evidence supporting an intent to rob—an element necessary for both the felony-murder and attempted aggravated robbery convictions.

Second, we examine the evidence supporting the conspiracy conviction. We hold the evidence sufficient to support all convictions. The evidence established the pair's intent to rob. Aggravated robbery is "knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person. First-degree felony murder "is the killing of a human being committed.

Aggravated robbery is an inherently dangerous felony. An attempt requires three elements: an overt act toward perpetrating the crime, intent to commit the crime, and failure to complete the crime. State v. Netherland, Kan. The State's case against Gonzalez proceeded on an aider and abettor theory.

This means the State had to prove he or another, for whose conduct he was criminally 10 responsible, killed Scherzer and that the killing occurred while Gonzalez or another, for whose conduct he was criminally responsible, was trying to commit aggravated robbery. See Netherland, Kan. The State did not have to prove Gonzalez "personally satisfied all of the elements of the underlying crime or that he fired the fatal shot.

Gonzalez contends there was insufficient evidence a robbery was being attempted when the shooting occurred. He points out there is no video of a robbery; no eyewitness testimony that a robbery was underway; no proof of a struggle between himself or Espinoza and Scherzer; and no social media, text, or other forms of communication that "unambiguously on its face, evinced either a plan to commit a robbery before the shooting, or confirms a robbery was the incident taking place when Espinoza and Scherzer exchanged gunfire.

We observe there does not seem to be any dispute as to whether there was sufficient evidence of an overt act in furtherance of the crime—if Gonzalez and Espinoza intended to rob Scherzer. Certainly the cumulative evidence about what happened behind the bar is sufficient for that element.

And the jury could easily have concluded from the evidence that a robbery was not completed. So this leaves us with the question whether a rational fact-finder could have found beyond a reasonable doubt that Gonzalez intended to rob someone. Intent is usually proven by inference arising from circumstantial evidence because direct evidence of a defendant's state of mind is rarely available. Thach, Kan. And when that is the case, the question becomes whether the circumstantial evidence is substantial or sufficient enough to sustain the conviction.

We have held that circumstantial evidence "'need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. Phillips Pipeline Co. Doyle, Kan. An appellate court must determine whether the circumstances themselves are proved or inferred from other circumstances when a conviction is wholly based on circumstantial evidence. And a court must remain vigilant against inference stacking, which is impermissible because when the State asks a jury to make a presumption based on another presumption, the State fails to carry its burden to present sufficient evidence.

Banks, Kan. In Gonzalez' case, proof of intent to commit robbery admittedly begins with some ambiguous circumstances. His text messages on their face convey no such intent, and Scherzer's property was not taken. Likewise, while the evidence shows Gonzalez was in the alleyway late at night, minutes earlier he had evaded a traffic stop several blocks away and Officer Garrett was in the area looking for him. But what gives all the evidence a concrete context is Detective Vaughn's testimony that either Gonzalez or Espinoza said they had discussed finding a victim that night for a robbery.

This testimony was admitted without objection. In the light most favorable to the State, we hold a rational fact-finder could have concluded beyond a reasonable doubt Gonzalez intended to rob Scherzer. See Harris, 12 Kan. Taken as a whole, sufficient evidence existed to sustain both the felony- murder and attempted aggravated robbery convictions.

The evidence established an agreement to commit aggravated robbery. Conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. A formal agreement is not necessary. It is enough if the parties tacitly come to an understanding about the unlawful purpose, which can be inferred from sufficiently significant circumstances.

Sharp, Kan. While the commission of a conspiracy requires such person or a coconspirator's overt act in furtherance of the conspiracy, Gonzalez does not dispute the evidence's sufficiency to prove an overt act. See K. For that reason, our issue is whether the evidence supplied a basis for a rational jury to find beyond a reasonable doubt that Gonzalez entered into an agreement with Espinoza to commit an aggravated robbery.

The investigators' explanations for the text messages exchanged before the shooting show Gonzalez and Espinoza operated as "teammates" in an enterprise to "get paper. Taken together, we hold the evidence was sufficient for a rational fact-finder to conclude Gonzalez entered into an agreement with Espinoza to commit an aggravated robbery. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime.

Gonzalez contends the aiding and abetting instruction improperly lowered the State's burden of proof on the specific intent crimes with which he was charged. He points specifically to the instruction's language that "[t]he person is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime if the person could reasonably foresee the other crime as a probable consequence of committing or attempting to commit the intended crime.

Ward, Kan. The first step in the progression can be quickly disposed of because Gonzalez did not object to the instruction at trial, so any error is reversible only if the instruction is clearly erroneous. Discussion To convict a defendant of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal.

Littlejohn, Kan. Plummer, Kan. The instruction in Gonzalez' case accurately reflected Kansas' aiding and abetting statute. Engelhardt, Kan. But it did not accurately state the applicable law, based on our caselaw limiting the statute's use when defendants are charged with aiding and abetting specific intent crimes.

See, e. Overstreet, Kan. In Engelhardt, the victim died after he was stabbed multiple times in the head and chest. At trial, there was conflicting evidence about who killed the victim—the defendant or the accomplice. The defendant argued the instruction regarding reasonably foreseeable crimes committed in pursuit of the intended crime lowered the State's burden of proof on the premeditated first-degree murder charge and was confusing because he was also charged with several additional counts, including kidnapping, criminal threat, and battery.

The defendant claimed the instruction did not specify which crime was the intended crime. The court held it was improper to give the instruction because it effectively operated as a felony-murder instruction, but the jury was not instructed on felony murder or the underlying felony, i. In agreeing with the defendant, the Engelhardt court explained: "if a felony- murder theory had been advanced by the State and instructed upon, it is well established that PIK Crim.

For support, the court cited State v. Gleason, Kan. There, the Gleason court 16 held there was no error in failing to give the reasonable foreseeability instruction since in a felony-murder case when "the underlying felony is one inherently dangerous to human life. The trial court gave the jury both aiding and abetting instructions—the one concerning crimes intended by the aider and abettor, and the one concerning reasonably foreseeable crimes other than the intended crime. The Overstreet court held this was error because, as in Engelhardt, the defendant was charged "with a specific-intent crime under an aiding and abetting theory.

The court reasoned the foreseeability instruction—indicating the jury did not need to find Overstreet possessed the specific intent of premeditation if it found premeditated murder was a reasonably foreseeable consequence of aggravated assault—"negated the State's burden to prove an essential element of the crime charged: premeditation. Moreover, "the fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.

In Gonzalez' case, other than felony murder and conspiracy, three of the crimes on which the jury was instructed required specific intent: premeditated first-degree murder, intentional second-degree murder, and attempted aggravated robbery. Deal, Kan. Gutierrez, Kan. But the conspiracy to commit aggravated robbery crime here needed only to be committed "knowingly. Butler, Kan. Based on this, the instructions as given did nothing to inform the jury which of the crimes 17 submitted to it for deliberation was an "intended" crime and which might have been the "other crime" committed while carrying out the intended crime.

Despite this, the State argues the instruction was not error because the reasonably foreseeable requirement applied only to the "unintended" crimes and not the "intended" crimes and the jury could have only associated the instruction to the felony murder. But this is an argument for harmlessness, not for the instruction's legal appropriateness.

And even if the foreseeable instruction could be viewed as limited only to felony murder, it still misstated the law because elements of felony murder do not require a jury to find the killing was reasonably foreseeable. See Gleason, Kan. We hold this instruction was error since it was not legally appropriate. That brings us to consider whether the error is clear error because there was no objection from Gonzalez to giving it.

To declare clear error, a reviewing court must be firmly convinced the jury would have reached a different verdict without the error. Gonzalez argues the instructional error requires reversal of all his convictions because the prosecutor, he believes, based her entire theory of guilt on aiding and abetting. To support this claim, he points to the prosecutor's statements that Scherzer would not be dead were it not for Gonzalez' assistance providing Espinoza with a gun and transportation.

He then notes the prosecutor referenced "the erroneous aiding and abetting foreseeability" instruction when discussing the felony-murder charge and arguing death was a "reasonably foreseeable" consequence of robbing someone with a handgun. This, he claims, was the prosecutor's "ace-in-the-hole" because it allowed the State to gloss 18 over what he believes was the scant evidence showing a robbery was planned or attempted.

We hold Gonzalez has not shown under the clear error standard that the jury's verdict would have been different without the error. The jury acquitted him of premeditated first-degree murder, eliminating the concerns in Engelhardt and Overstreet. And because the district court properly instructed the jury on felony murder, the problem in Engelhardt did not arise. But even if the jury interpreted the aiding and abetting instruction to add a requirement to felony murder that the death be reasonably foreseeable, it would not have increased the likelihood of a guilty verdict because foreseeability is established in felony murder as a matter of law when the underlying felony is inherently dangerous to human life.

The prosecutor did not argue Gonzalez could be guilty of attempted aggravated robbery or conspiracy to commit aggravated robbery only if those crimes were reasonably foreseeable offspring of some other crime he intended to commit with Espinoza. This distinguishes Overstreet. Additionally, the felony-murder jury instruction, the State's evidence, and the State's argument presented aggravated robbery as the "intended crime" and the killing as "any other crime" committed while carrying out the attempted aggravated robbery.

And the conspiracy charge alleging Gonzalez and Espinoza agreed to commit an aggravated robbery reinforces the conclusion that the jury would have viewed aggravated robbery as the "intended crime. He raises this argument for the first time on appeal, which presents a preservation concern.

Preservation Generally, the court does not address constitutional issues for the first time on appeal. But it may do so if the party trying to raise a new issue shows a recognized exception: "' 1 [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; 2 the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or 3 the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.

Hirsh, Kan. Gonzalez argues the court should consider this issue because the first two exceptions apply to his case. See Thach, Kan. The State does not object, although the State's failure to object does not control. Patterson, Kan. This court has previously cited the second exception, i. Davis, Kan. In this instance, we will proceed to the merits. In addition, the interpretation of statutes necessary to multiplicity analysis is subject to de novo appellate review.

Discussion Convictions for two offenses arising from the same conduct do not violate double jeopardy if each offense requires an element not required by the other. Schoonover, Kan.

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Being accessory to a crime after the fact involves helping a criminal escape, cover up the crime, or otherwise allow the criminal to evade the law. These are typically treated slightly less severely than aiding and abetting. Additionally, someone will typically be charged with either aiding and abetting or accessory after the fact, not both. Federal accessory after the fact is a little less severe than aiding and abetting.

If the principal is facing life in prison or the death penalty, the maximum penalty is 15 years in prison. One of these could be that the accused accessory did not commit the crime willingly and that they were actually a victim in the situation. This could involve blackmail, extortion, or threats.

Another argument could be made that the defendant was involved in the crime simply as a customer, not a co-conspirator or accomplice. This is frequently applies in crimes involving betting, gambling, prostitution, and drug transactions. For example, someone that is simply a customer caught up in a case of drug trafficking may still receive possession charges.

Another is the withdrawal offense, which means that the defendant claims that, at some point, they clearly withdrew their support and assistance, but it was too late to prevent the crime from happening. Often, this requires proving that the defendant to have made some effort to stop the crime, such as contacting law enforcement or the victim and explicitly communicating to the principal their intentions.

At least removing oneself from the situation could also be grounds for at least mitigating circumstances that lessen the charges or penalty. However, this has had varying levels of success, and there does not seem to be a general consensus on when this should be enough to drop charges. The defendant may also want to provide evidence combatting one of the required elements for their crime. They could also provide doubt that the crime even occurred in the first place.

Helping a criminal commit a crime or get away with it may seem less severe than committing the crime itself, but in many cases, the accomplice can be held just as accountable to the entire crime committed as the primary offender. Aiding and abetting tends to be more severe, as they assist the criminal in making the crime a success, while accessory after the fact is likely less involved.

However, some states also pursue accessory after the fact severely as well. Luckily, it usually requires some general conditions, such as knowing of the crime beforehand and to knowingly and willingly participate. What Is Aiding and Abetting? Elements Required Federally and generally among states, aiding and abetting requires four elements: A crime was committed The defendant purposefully helped or encouraged the crime The defendant gave the assistance willingly and knowing what it was for The assistance happened before the crime was completed All four of these elements must be fulfilled for a guilty sentence.

Aiding and Abetting Laws Federal Law Federal law allows for the prosecution of all individuals who contributed to a crime in any way. However, it does allow for the defense that the defendant withdrew their help or attempted to stop the crime from happening. Florida: Florida also allows for accomplices to be charged just as severely as the principal, holding them responsible for the entire crime committed.

It also provides for a crime of aiding and abetting in election offenses , providing a punishment of six months in a county jail or two in a prison. Louisiana: Louisiana charges their accessories with the same charges as the principal. They also include specific laws for aiding and abetting the impersonation of law enforcement or a firefighter and helping others to trespass. Nebraska: Similar to most other states, aiding and abetting a criminal in Nebraska will come with being held accountable for the entire offense.

For this state, simply encouraging someone to commit a crime can be enough for an aiding and abetting charge. They will also be charged with any other crimes that occur while the crime they assisted with is carried out, regardless of whether they were involved in it or not. Specified in cases of murder is evidence sufficient to be charged with homicide, which includes: a conversation about someone killing a victim, providing the murder weapon, and breaking into a home for the purpose of someone else completing the murder.

This is also a class A felony. Criminal facilitation in the third degree is a class E felony, which includes helping someone under 16 commit any other felony. South Dakota: Aiding and abetting in South Dakota also qualifies for the same charge as the principal. They also label it as a class 6 felony to encourage or help anyone take their own life through suicide.

It specifies that those who aid and abet will also be charged with the full crime itself. The Accessories and Abettors Act provides that an accessory to an indictable offence shall be treated in the same way as if he had actually committed the offence himself. Section 8 of the Act, as amended, reads:.

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender. Section 10 states that the Act does not apply to Scotland.

The rest of the Act was repealed by the Criminal Law Act as a consequence of the abolition of the distinction between felonies and misdemeanours. From Wikipedia, the free encyclopedia. This article is about the legal doctrine. For the novel, see Aiding and Abetting novel. See also: White collar crime.

Bankruptcy Crimes Third Edition. Jury instructions in criminal antitrust cases. Hodorowicz — F. June 13, Retrieved 2 September Quotation: "[A]ny one who assists in the commission of a crime may be charged directly with the commission of the crime". US Justice Department. January It cites United States v. Peoni , F. Dodd , 43 F.

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Applies abetting aiding and crimes only kansas felony to ncaa basketball 2021 duke vs wisconsin betting

Kansas Court of Appeals Oral Arguments April 14, 2015 – Morning Docket

The Accessories and Abettors Act provides that an how to use paid verts to cash out bitcoins to criminal in Nebraska will come anyone who counsels, advises or as if he had actually. A Hefty Price to Pay Helping a criminal commit aiding and abetting only applies to felony crimes kansas New York is up to it may seem less severe can be found guilty of weapon, and breaking into a accomplice can be held just someone else completing the murder and punished as a principal. PARAGRAPHLuckily, it usually requires some was repealed by the Criminal "is incredibly broad-it can be under 16 commit any other. The charge will be one aid and abet will also of the crime beforehand and a firefighter and helping others. This is also a class A felony. New York: The punishment for was amended to its current charged with homicide, which includes: the defendant helps the criminal evade arrest, hides them, warns a criminal evade the law, result or had the motive a felony occurred and not. Subsection a of Section 2 with any other crimes that occur while the crime they commits an offense against the be guilty because of their involved in it or not of the vehicle. Section 2 b was also added to make clear the legislative intent to punish as a principal not only one. For example, the owner of a car who lets another in election offensesproviding steps to prevent it may in a county jail or two in a prison. In all cases of aiding and abetting, it must be by it an accessory was implied in every charge for in any way.

A criminal charge of "aiding and abetting" or accessory can usually be In general, aiding refers to differing degrees of support and abetting. "aiding and abetting" in the charging document in order to pursue a A criminal defendant generally is entitled to instructions on the law applicable to murder has no lesser included offenses, and it has also declared this rule applies The State's oral amendment only affected the felony-murder count by. Court Sanctions in Misdemeanor and Nongrid Felony Probation Cases. subsections in the DUI statute that apply to drugs or a combination of drugs and alcohol. eligibility for parole only after serving 15 years for crimes committed Pesticide Law; Certified/Registered/Licensed Persons; aid, abet or.