Petition for Writ of Certiorari — Rheuben Johnson, Petitioner v. Kansas

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APPENDIX

Apx A. Decision of the Court of Appeals of Kansas

State v. Johnson, 2017 Kan. App. Unpub. LEXIS 872

Court of Appeals of Kansas

October 13, 2017, Opinion Filed

No. 110,837

Reporter

2017 Kan. App. Unpub. LEXIS 872 * 404 P.3d 362

STATE OF KANSAS, Appellee, v. RHEUBEN

JOHNSON, Appellant.

On April 15, 2012, Nodwell met Johnson at a Mr.

Goodcents restaurant to talk about the possibility of

employment. At first, the conversation V21 focused on

employment, but Johnson soon shifted the conversation

to his ex-wife. Johnson told Nodwell that Annie was 'the

root of all his problems, [explaining] how she was taking

his son, his money, his business, she was into weird

things like Goth and vampires and addicted to pain pills."

Johnson said Annie was an unfit mother.

Johnson told Nodwell "it would be worth money if she

if she was gone." Nodwell

would disappear.

understood Johnson to mean "he wanted to kill her."

Initially, Nodwell thought Johnson was kidding, but the

conversation continued to focus on Annie. Johnson told

Nodwell that he would pay him $20,000 "to make her go

away."

.

Subsequent History: Petition denied by State v.

Johnson, 2018 Kan. LEXIS 712 (Kan., Aug. 31, 2018)

Prior History:

JjAppeal from Johnson District Court; BRENDA M

CAMERON, judge.

Disposition:

Affirmed.

Counsel: Rheuben Johnson, appellant, Pro se

Shawn E. Minihan, assistant district attorney, Stephen

M. Howe, district attorney, and Derek Schmidt, attorney

general, for appellee.

Judges: Before MCANANY, .P.J., STANDRIDGE, J.,

and WALKER, S.J.

Opinion

MEMORANDUM OPINION

PER CURIAM: This is Rheuben Johnson's direct appeal

from his conviction of two counts of solicitation to

commit the first-degree murder of his former wife, Annie

Johnson. The couple was married in 2005, and their son

was born the following year. They separated in October

2009 and were divorced in January 2012. The district

court apparently ordered primary placement of their

child with Annie, and Johnson had unsupervised

parenting time which then changed to supervised

parenting time. This created ongoing conflicts between

the parents.

During this period, Ronald Nodwell, who had recently

been released from prison, was looking for employment.

A mutual friend recommended that Nodwell speak to

Johnson about working for Johnson's extermination

company.

.

After leaving the restaurant, Johnson drove Nodwell

past Annie's apartment complex to show Nodwell where

she lived. Johnson told Nodwell that he could not get

into the gated apartment complex without a code.

Johnson showed Nodwell that Annie drove a black SUV.

He drove Nodwell to the McDonald's restaurant where

Annie routinely stopped to get coffee before work, and

he identified for Nodwell the hospital where Annie

worked. Johnson also told Nodwell the days his son was

at daycare.

While they were in the truck together, Johnson gave

Nodwell three [*31 suggestions about how he could

make Annie disappear. First, Johnson suggested that

Annie was addicted to pain pills, so Nodwell "could

overdose her on her pain pills and [make it look] like an

accident." Second, Nodwell could burn down her

apartment. Third, Nodwell could catch Annie after

getting coffee "and drive up beside her and shoot [her]

in the head on the way to work."

After this meeting, Johnson and Nodwell spoke several

times on the phone. In these conversations Nodwell

wanted to talk to Johnson about employment, but

Johnson turned the discussion to Annie, leading

Nodwell to conclude that Johnson was serious about

having his ex-wife killed. Nodwell told Johnson it would

be stupid to make Annie disappear because Johnson

would be the prime suspect. From that point on,

Johnson became more cautious and "[e]very time he

talked to me after that, he made it sound like he was

talking about a construction job or cleaning up glass. He

Appendix A. Page 1

made it sound like it was something other than what it

was.'

On May 18, 2012, Nodwell contacted the Olathe Police

Department and told Detective Matt Campbell about his

meeting with Johnson. The police decided to use an

undercover officer to make contact with

Johnson..141 They asked Nodwell to call Johnson and

record the conversation. When Johnson did not answer,

Nodwell left a message which Johnson returned two

days later.

Nodwell told Johnson that he did not have time to handle

the situation, but he had a friend that was willing, and

asked Johnson if he'd be interested in meeting him.

Johnson agreed, and they made arrangements to meet

the next day, May 22, 2012.

The meeting took place at Waterworks Park in Olathe.

Johnson, Nodwell, and Sergeant Lonnie Stites, an

undercover police officer, were present. Stites was

wearing a transmitter and recording device. A recording

of the conversation was later introduced into evidence.

Nodwell introduced Stites to Johnson and then left the

meeting. Stites and Johnson agreed that Stites would

carry out Johnson's request for $10,000. Johnson

agreed to pay $3,000 as a down payment and the

remaining $7,000 after the task was completed.

During the course of the meeting, Johnson did not

directly ask Stites to kill Annie, but he verified that

Nodwell had informed Stites on the details of what

Johnson wanted done. During the conversation,

Johnson often referred to the job in terms of work. He

told Stites that he wanted some jjjunk hauled off. An

example of this is as follows:

"[Nodwell] kind of filled you in on what needs to be done.

We can call it, you know, a whole bunch of different

projects. We can call it hauling off a bunch of old vans

and trucks that I've got in the back, or that'd be one

one project or remodeling, fixing up the home could be

another project."

.

Johnson told Stites that his life was going well except for

the child custody issues, so it was time to get these

projects done. Johnson played for Stites a recording

Johnson had made of his son crying when he returned

his son to Annie's home. Johnson told Stites it would be

nice to get "stuff cleaned up here" as soon as possible.

Johnson said he would be out of town from Wednesday

until Monday and suggested that would be a good time.

Johnson said that nobody knows about the project other

than Nodwell, and it "would be nice to have everything

cleaned up when I got back." Stites understood that

Johnson was talking in code about having his ex-wife

murdered.

Stites told Johnson, "when you talk about hauling trucks

off or whatever I got a general idea of what you're

needing." Johnson responded that it would not be smart

for either one of them [*61 to go into more detail. Stites

said that Nodwell had told him that Johnson had a

problem with his ex-wife. Johnson responded: "Yeah.

Urn, that is a problem, um, be nice if I didn't have that

problem. But nice if, uh, never had to deal with her

again." When Stites asked if Johnson wanted the project

terminated, Johnson responded: "Of course, that's not

why we're here today. I just want the van hauled off."

Stites agreed to $10,000 for the job, noting he would

need pictures and addresses where Annie could be

found. Stites originally wanted to be paid $5,000 upfront

because this was "a unique problem to take care of,"

and if Stites did not get paid, "it's not like I can take you

to small claims court." Johnson expressed concern that

if something happened to Annie, he would be a suspect.

Stites said: "That's the whole point of this happening

while you're out of town." Stites finally agreed to an initial

payment of $3,000.

Stites wanted a second meeting so that Johnson could

provide additional information, including photographs of

Annie and a map. When Stites called Johnson the next

day to set up the meeting, Johnson shifted his request

to a request that Stites do private detective

workj2l investigating Annie. Johnson gave Stites

information such as the vehicle Annie drove and her

daily schedule but expressed concerns about being

caught:

"I thought about it a whole lot and, you know, what I've

really got to do is what's best for my son, and if I don't

do something stupid it's not really good for him and

I go give somebody money and maps

if I don't and

and pictures all at once, it really could be easily

pretty bad intentions."

misconstrued as

.

. .

.

. .

.

Johnson said he could give Stites pictures and maps,

though he noted,

"giving somebody money and map and pictures could

be. can you see how that can look really really bad, I

deal with

how to

haven't quite figured out how to

that yet.... I'm not sure if it's worth that much risk. ..

[T]o do that, no matter how much I want to, I'd like to

track and see where my wife is and no matter how much

I'd like to get stuff hauled off or whatever I want to call it,

I just think I'd be putting myself in a world of trouble."

.

.

.

.

. . .

.

Johnson said he wanted to make sure he did not say or

do something that ended up getting himself into a mess.

Stites told Johnson that there were things he needed to

know and that heJ could not just "guess." Stites said

that if Johnson was worried about the picture, he could

bring one to the meeting to show what Annie looked like,

but Stites would need the addresses and the money.

Stites told Johnson he would rather talk further in person

rather than over the phone. Johnson told Stites that

Annie would be bringing their son to therapy later in the

day, giving Stites the location, the time, and a

description of her vehicle. Stites again requested a

meeting and asked Johnson to bring a picture that he

could at least see what she looked like. Johnson agreed

Appendix A. Page 2

to bring some family pictures on his phone for Stites to

see. Johnson identified for Stites the hospital where

Annie worked and gave Stites the address where Annie

dropped off their son for supervised visitation.

Johnson called Stites and cancelled their second

meeting at the last minute. He told Stites that he could

not 'say or do or insinuate anything that would be wrong

doing" because any conversation can be recorded.

Johnson told Stites he needed "to get you on as, like, an

investigator that can kind of help out" and asked if Stites

needed more detail than that. Stites replied that

Johnson could use whateverI1. words that he wanted

to use, but that they both understood what Johnson was

asking. Johnson replied: "Right."

Stites told Johnson that he was giving mixed signals,

and he wanted to know if Johnson wanted him to do the

"original project." Johnson responded "probably," but he

needed to think about it some more. But he then

concluded, "Yea. The goal is to solve the problem."

Johnson agreed to pay the $3,000 down payment but

suggested that he give Stites the money in Missouri

rather than in Kansas. But Stites told Johnson that he

had a problem going into Missouri because "they kind of

want to talk to me over there, so I don't go over there."

Johnson insisted that he needed to give Stites the

money in Missouri. Stites agreed to meet Johnson at a

Walmart store in Missouri.

When their second face-to-face meeting took place at

the Walmart store, Johnson gave Stites $3,000 in cash

and a hand-drawn map that showed where Annie lived

and where Johnson had his supervised parenting time

with his son. When Johnson showed Stites a picture of

Annie, Stites asked, "This is the vehicle you want to

disappear?" Johnson confirmed: "Yeah."

When Johnson gave Stites the map, he again discussed

the vehicle that [*101 Annie drove and Annie's schedule

the next day. Johnson told Stites to be careful because

Annie could be armed, explaining that she was into

drugs and associated with "drug people, Goth people,

vampire people." Johnson confirmed that once the job

was done, he would arrange to pay Stites the additional

$7,000. Johnson told Stites that he did not want

anything to happen in front of his son.

Following this second meeting Johnson was arrested

shortly after he crossed the state line into Kansas. He

was charged with solicitation to commit murder based

on his solicitation of Stites. The State later amended the

complaint to include a second charge of solicitation to

commit murder based on his solicitation of Nodwell.

While awaiting trial, Johnson met Richard Porterfield in

the Johnson County Adult Detention Center where they

both were being held. In March 2013, Johnson told

Porterfield that he worked in pest and animal control.

Porterfield told Johnson that he did not think he would

be any good at pest control work. Johnson replied,

"You'd probably be better at getting rid of humans."

Porterfield, playing along, said: "Yeah, that's probably

more up my alley."

According to Porterfield, Johnson [*111 asked him if he

would be interested in doing something like that, more

specifically "killing my wife." When Porterfield asked

how much Johnson would pay, Johnson responded: 18

to $10,000." Johnson provided Porterfield with details

about his family. Johnson asked Porterfield how long he

was going to be in jail and expressed his hope that

Porterfield would be released soon.

Porterfield testified that he received a plea deal from the

State in exchange for his testimony against Johnson.

Porterfield admitted that his reason for bringing this

information to law enforcement was to get help in his

own case.

After Porterfield disclosed his conversation with

Johnson, the State amended the complaint for a second

time to include a count of solicitation to commit murder

based on Johnson's solicitation of Porterfield.

At trial, Johnson's girlfriend, Kathy Klostermann,

testified for the defense. She described Johnson's

property, and the defense proffered pictures of junk and

vehicles around Johnson's property that needed to be

removed. She testified that Johnson had hired a private

investigator to look into his wife's affairs but that the child

custody and divorce issues were improving at the

time [*121 of Johnson's arrest.

The jury convicted Johnson solicitation to commit

murder in the first degree with respect to the Nodwell

and Stites transactions. He was acquitted on the third

charge involving Porterfield.

Following the denial of Johnson's motion for a new trial,

Johnson was sentenced to a controlling term of 132

months in prison. Johnson's appeal of his convictions

brings the matter to us for review.

Constitutionality of Criminal Solicitation Statute

Johnson challenges the constitutionality of our criminal

solicitation statute on the grounds of vagueness. K.S.A.

2016 Supp. 21-5303(a) states: "Criminal solicitation is

commanding, encouraging or requesting another

person to commit a felony, attempt to commit a felony

or aid and abet in the commission or attempted

commission of a felony for the purpose of promoting or

facilitating the felony."

Johnson did not raise this issue before the district court.

Generally, an appellant may not raise a constitutional

issue for the first time on appeal. State v. Godfrey, 301

Kan. 1041, 1043, 350 P.3d 1068 (2015). But because

Johnson's argument is that the statute is

unconstitutional on its face, rather than as applied to

him, the issue before us is a legal issue that does not

Appendix A. Page 3

require any findings of fact. Accordingly, we can

consider [*131 this claim for the first time on appeal.

See State v. Atteberry, 44 Kan. App. 2d 478, 492, 239

P.3d 857 (2010).

Our review of this issue is unlimited. State v. Bollinger,

302 Kan. 309, 318, 352 P.3d 1003 (2015), cert. denied

136 S. Ct. 858, 193 L. Ed. 2d 721 (2016). In reviewing

the criminal solicitation statute, we presume the statute

is constitutional and resolve all doubts in favor of its

validity. We must interpret the statute in a way that

makes it constitutional if there is any reasonable

construction that will maintain the legislature's apparent

intent. See State v. Petersen-Beard, 304 Kan. 192, 194,

377 P.3d 1127 (2016).

In resolving this constitutional challenge, we first

determine whether the statute gives adequate warning

of the proscribed conduct. The statute is

unconstitutionally vague if it does not provide a person

of ordinary intelligence with fair notice of what is

prohibited. Next, we determine whether the statute

adequately guards against arbitrary and unreasonable

enforcement. Bollinger, 302 Kan. at 318.

Vagueness: Lack of Objective Standards

Unconstitutional vagueness arises when persons of

common intelligence must guess at a statute's meaning

and may differ as to its application. See City of Lincoln

Center v. FarmwayCo-Op, Inc., 298 Kan. 540, 545, 316

P.3d 707 (2013). But a statute is not unconstitutionally

vague if its words are commonly used, are judicially

defined, or have a settled meaning in law. City of Wichita

v. Hackett, 275 Kan. 848, 853-54, 69 P.3d 621 (2003).

Johnson's argument focuses on the absence of any

definition for the term "encouraging" as used [*141 in

the statute. He does not raise this vagueness argument

with respect to the terms "commanding" and

"requesting" found in the statute. See K.S.A. 2016 Supp.

21-3303(a).

Johnson claims the word "encouraging" lacks an

objective standard in that it requires "an inquiry into the

mental state of the person solicited." He posits that

based on the subjective interpretation of the reader,

Jonathan Swift would be liable for prosecution for

hundreds of counts of solicitation of murder under

K.S.A. 2016 Supp. 21-5303 for the language used in his

satirical essay, A Modest Proposal (1729), in which he

advocated for cannibalism of babies as a means of

population control.

But Black's Law Dictionary defines "encourage" as: "To

instigate; to incite to action; to embolden; to help."

Black's Law Dictionary 644 (10th ed. 2014). This

definition is not predicated on the mental state of the

person solicited. Jonathan Swift would have nothing to

fear from publishing his essay in Kansas.

Johnson cites our Supreme Court's decisions in State v.

Br/an, 259 Kan. 143, 910 P.2d 212 (1996), and State v.

Kirby, 222 Kan. 1, 9-10, 563 P.2d 408 (1977), for

support. In Bryan the court examined the words

"alarms," "annoys," and "harasses" and found them to

be unconstitutionally vague because the statute did not

contain a definition or objective standard to measure the

prohibited [*151 conduct. 259 Kan. at 149. The court

found that those terms were subject to a wide variety of

interpretations and were thus dependent upon the

subjective feelings of the victims. 259 Kan. at 149-50. In

Kirby the court found the term "endangering of life" was

vague within the meaning of the statute. The court noted

there was no universally accepted definition of

"endangering of life," and the definition of the phrase

was a matter of speculation. 222 Kan. at 10.

Bryan does not control. As noted earlier, the definition

of "encourage" does not include any element related to

any mental state of the person solicited. In fact, under

K.S.A. 2016 Supp. 21-5303(b), "[it is immaterial under

subsection (a) that the actor fails to communicate with

the person solicited to commit a felony if the person's

conduct was designed to effect a communication." The

word "encouraging" is a common term, plainly stated

and easily understood, and is not dependent to the

subjective feelings of the victims, as was the case in

Bryan. In our case, the defendant's conduct—rather

than the subjective understanding of the person

solicited— is the standard for determining whether the

crime has been committed.

in which there was no universally accepted

Unlike

definition of the phrase "endangering of life," [*161 we

have a clear, easily understood, and universally

accepted definition of the verb "encourage." A person of

common intelligence is adequately notified of the

prohibited conduct under our criminal solicitation

statute. The language in the statute is clear and

unambiguous.

In Edmondson v. Pearce, 2004 OK 23, 91 P.3d 605,

631-32 (Okla. 2004), the Oklahoma Supreme Court

found that the word "encourages" in the phrase "willfully

instigates or encourages any cockfight" was not

unconstitutionally vague because a person of ordinary

intelligence could understand it and has fair notice of

what conduct is prohibited. See also State v. Todd, 468

N.W.2d 462, 465-66 (Iowa 1991).

Johnson argues that there is no distinction between

encouraging under the statute and protected free

speech. But the court in Edmondson rejected a similar

argument that the language of the cockfighting statute

infringed upon First Amendment rights because

"communication which incites the imminent lawless

action of cockfighting does not constitute protected

speech." 91 P.3d at 633.

A common person can understand the terms

"commanding, encouraging, or requesting" without any

Appendix A. Page 4

definitions in the statute. K.S.A. 2016 Supp. 21-5303

does not contain terms that are confusing or susceptible

to ambiguous or differing meanings. Thus, Johnson fails

to demonstrate that the language in K.S.A. 2016 Supp.

21-5303 provides inadequate [*171 notification of the

proscribed conduct.

Vagueness: Subject to Arbitrary and Discriminatory

Enforcement

Johnson argues that the statutes language fails the

precision necessary to protect against arbitrary and

statute

is

enforcement.

A

discriminatory

unconstitutionally vague if it fails to protect against

arbitrary and discriminatory action by those responsible

for enforcing it. Bollinger, 302 Kan. at 318.

Johnson relies on Thelen v. State, 272 Ga. 81, 82526

S.E.2d 60 (2000), in which the court examined a noise

ordinance and found that prohibiting unnecessary or

unusual sound or noise which annoys others fails to

clearly identify the prohibited conduct because whether

a noise is unnecessary, unusual, or annoying to others

depends on the listener. But in our present case, as we

explained earlier in this opinion, there are no subjective

elements included in K.S.A. 2016 Supp. 21-5303.

Johnson claims the statute allows a prosecution even

though "real innocent explanations exist." He cites State

v. Adams, 254 Kan. 436, 866 P.2d 1017 (1994); Smith

v. Fairmont, 196 Kan. 73, 410 P.2d 308 (1966); and

People v. McCaughan, 49 Cal. 2d 409 317 P.2d 974

(1957). But he provides no argument as to how these

cases support his position.

Johnson also argues that K.S.A. 2016 Supp. 21-5303 is

vague because it does not require corroborating

evidence. He claims a requirement of corroborating

evidence, such as required in Colorado (Cob. Rev. Stat.

§ 18-2-301[l][1998]) and Texas (Tex. Penal Code Ann.

§ 15.03[bl [1994]), would remedy the problem

that [*181 allows convictions based on the subjective

interpretation of the person allegedly solicited. But, as

demonstrated above, a conviction under our criminal

solicitation statute is not dependent upon the mental

state of the person solicited.

The language of K.S.A. 2016 Supp. 21-5303 gives fair

warning of the proscribed conduct and adequately

guards against arbitrary and unreasonable

enforcement. It is not unconstitutionally vague on its

face.

Vagueness: Unconstitutionally Overbroad

Johnson also asserts that K.S.A. 2016 Supp. 21-5303 is

overbroad because it infringes upon his First

Amendment right to free speech; does not contain an

element requiring "imminent" conduct; and by

prohibiting speech that encourages action, the statute

does not use the least restrictive means to accomplish

the goals of the statute.

A statute is facially invalid if it prohibits a substantial

amount of protected speech. United States v. Williams,

553 U.S. 285, 292, 128 S. Ct. 1830, 170 L. Ed. 2d 650

(2008). "An overbroad statute makes conduct

punishable which under some circumstances is

constitutionally protected." Dissmeyerv. State, 292 Kan.

37, 40, 249 P.3d 444 (2011). For an overbreadth

argument to succeed, a defendant must establish that

(1) the protected activity is a significant part of the law's

target, and (2) there exists no satisfactory method of

its

constitutional

from

law's

severing

that

unconstitutional [*191 application.

As noted earlier, K.S.A. 2016 Supp. 21-5303(a)

prohibits "commanding, encouraging or requesting

another person to commit a felony, attempt to commit a

felony or aid and abet in the commission to attempted

commission of a felony for the purpose of promoting or

facilitating the felony."

Johnson argues that the solicitation statute is overbroad

because it violates his free speech rights. But "[d]espite

our First Amendment rights, we are not free to harm

others under the guise of free speech." State v.

Whitesell, 270 Kan. 259, 271, 13 P.3d 887 (2000).

"[T]he goal of the First Amendment is to protect

expression that engages in some fashion in public

dialogue, that is "communication in which the

participants seek to persuade, or are persuaded;

communication which is about changing or maintaining

beliefs, or taking or refusing to take action on the basis

A statute that

of one's beliefs." [Citations omitted.]'

is otherwise valid, and is not aimed at protected

expression, does not conflict with the First Amendment

simply because the statute can be violated by the use of

spoken words or other expressive activity." [Citations

omitted.]" Whitesell, 270 Kan. at 271-72.

...

Our Supreme Court has repeatedly held that

"expressive activity may be prohibited if it 'involves

substantial disorder or invasions of the rights of others.

[Thus] violence [*201 or other types of potentially

expressive activities that produce special harms distinct

are entitled to no

from their communicative impact

constitutional protection." Whitesell, 270 Kan. at 272

(quoting Champagne v. Gintick, 871 F. Supp. 1527,

1534 ID. Conn. 1994]). Johnson fails to explain how the

State intervening in his efforts to have his ex-wife

murdered interferes with his free speech rights under

the First Amendment. K.S.A. 2016 Supp. 21-5303(a)

does not violate Johnson's free speech rights.

.

.

.

With regard to Johnson's "imminence" argument, he

fails to explain how a statute is overbroad if it does not

specify that the criminal action being solicited, such as

his murder-for-hire scheme, must be executed within

some specified time period.

Appendix 'A. Page 5

With regard to the argument that the statute does not

use the least restrictive means to accomplish its goals,

Johnson fails to adequately explain how the use of the

word encouraging is unreasonably restrictive and that

the use of the words "commanding' and "requesting"

would suffice to achieve the statute's goal.

locations. The solicitation of Stites occurred after the

intervening event of Nodwell withdrawing from the plan.

The State relied on separate evidence in proving each

charge. Each of these charges constitutes a separate

and distinct unit of prosecution. They are not

multiplicitous.

K.S.A. 2016 Supp. 21-5303 is not unconstitutionally

overbroad.

Sufficiency of the Evidence

Multiplicity

Multiplicity is charging a single offense in several

counts, creating the potential for multiple punishments

for a single offense in violation of the Double Jeopardy

Clause of the Fifth Amendment to the United States

Constitution and Section 10 of the Kansas Constitution

Bill of Rights. State v. King, 297 Kan. 955, 970, 305 P.3d

641 (2013). See State v. Overman, 301 Kan. 704, Syl.

14, 348 P.3d516(2015); State v. Schoonover, 281 Kan.

453, 475. 133 P.3d 48 (2006).

are

convictions

his

claims

Johnson

multiplicitous [*211 because the State's evidence

showed a single ongoing attempt to hire first Nodwell

and then Stites to murder his ex-wife. Multiplicity is an

issue of law subject to unlimited review. State v. Belt,

305 Kan. 381, 407, 381 P.3d 473 (2016). We may

address the issue of multiplicity for the first time on

appeal in order to serve the ends of justice and prevent

a denial of fundamental rights. State v. Weber, 297 Kan.

805, 809, 304 P.3d 1262 (2013).

Johnson contends that the evidence presented at trial

was insufficient to support his convictions because (1)

the State relied on stacked inferences to support the

conviction; (2) the State failed to prove sufficient

evidence of imminence; (3) the evidence amounted to

nothing more than discussions; (4) there was insufficient

evidence that Johnson was the solicitor; (5) the State's

case was based entirely on innuendo; (6) Stites'

understanding of Johnson's request was based on

impressions he received from Nodwell; and (7) the State

failed to prove Johnson's specific intent. Johnson

fails [*231 to provide adequate argument to support

many of his contentions, but we will address each in

turn.

In considering the sufficiency of the evidence to support

a conviction, we view the evidence in a light favoring the

State to determine whether a rational fact-finder could

have found the defendant guilty beyond a reasonable

doubt. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080

(2015). In doing so, we do not reweigh the evidence or

assess the credibility of witnesses. State v. Daws, 303

Kan. 785, 789, 368 P.3d 1074 (2016).

The key inquiries in resolving a multiplicity claim are

whether the convictions arise from the same conduct

and whether, by statutory definition, there are two

offenses or just one. King, 297 Kan. at 970. In

determining whether a conviction arose from the same

conduct, we consider four factors: (1) whether the acts

occurred at or near the same time; (2) whether the acts

occurred at the same location; (3) whether there is a

causal relationship between the acts as opposed to

there being an intervening event; and (4) whether a

fresh impulse motivated some of the conduct. State v.

Pribble, 304 Kan. 824, Syl. IT 3, 375 P.3d 966 (2016).

There is no distinction between direct and circumstantial

evidence in terms of probative value. State v. McBroom,

299 Kan. 731, 754, 325 P.3d 1174 (2014). A verdict may

be supported by circumstantial evidence if such

evidence provides a basis from which the fact-finder

may reasonably infer the existence of the fact in issue.

The evidence need not exclude every other reasonable

conclusion or inference. State v. Logsdon, 304 Kan. 3,

25, 371 P.3d 836 (2016). Circumstantial evidence used

to infer guilt must be proved and cannot be inferred or

presumed from other circumstances. State v.

Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).

Johnson cites several cases that involve the grouping of

solicitation charges for the purposes of sentencing, but

the cases cited do not hold that the convictions

themselves are multiplicitous. See e.g., United States v.

Wilson, 920 F.2d 1290, 1293 (6th Cir. 1990).

Johnson cites caselaw regarding stacked inferences,

but he provides no argument regarding its application to

this case. He fails to show how his convictions relied on

stacked inferences.

Johnson was charged with soliciting Nodwell, Stites,

and Porterfield to murder Annie. He was

convicted [*221 of soliciting Nodwell and Stites but

acquitted on the charge relating to Porterfield. The

convictions on the charges relating to Nodwell and

Stites were not multiplicitous. They covered conduct in

separate periods of time. They involved different

individuals. The solicitations occurred at different

Next, Johnson claims that there is insufficient evidence

of imminence. By this, he apparently claims the State

had to prove that [*241 he solicited Nodwell and Stites

to immediately murder his ex-wife. The statute makes

no reference to imminence. Johnson cites Brandenburg

v. Ohio, 395 U.S. 444, 449, 89 S. Ct. 1827, 23 L. Ed. 2d

430 (1969), in which the court held that the Ohio

Criminal Syndicalism Act was unconstitutional because

it "purports to punish mere advocacy" and to forbid

Appendix A. Page 6

assembly with others merely to advocate the described

type of action.' This has nothing to do with the

sufficiency of the evidence. Besides, the crime is the

solicitation, which is not predicated on the efficacy of the

person solicited to carry out the plan.

Next, Johnson claims the evidence shows that he never

went beyond mere discussion, and the State failed to

prove that he crossed the threshold from mere

discussion to action. He cites State v. Gaines, 431 So.

2d 736 (Fla. 1983), for the proposition that serious

discussions without a decision to proceed is insufficient.

But here, there was ample evidence that Johnson went

beyond mere discussion. With respect to Nodwell,

Johnson offered him money, provided details that would

help Nodwell accomplish the murder, and suggested

different scenarios for committing the crime. With

respect to Stites, Johnson actually delivered the down

payment to Stites for the crime. We reject Johnson's

argument on this point.

Next, [*251 Johnson claims there is insufficient

evidence that he was the solicitor. He relies on People

v. Salazar, 140 Mich. App. 137, 362 N.W.2d 913 (1985),

in which the informant did the soliciting and the

defendant only responded to the informants

solicitations. But viewing the evidence as a whole, it is

clear that Johnson solicited Nodwell and Stites to kill

Annie. Neither Nodwell nor Stites sought out Johnson to

see if he was interested in having his ex-wife murdered.

Next, Johnson argues there is insufficient evidence

because the entire case is based on innuendo. For

support, Johnson points to Stites' preliminary hearing

testimony that Johnson never directly asked Stites to kill

his ex-wife. But Johnson ignores the testimony the jury

heard at trial. There was more than enough testimony,

both direct and circumstantial, to support the jury's

verdicts without resorting to any innuendo.

Next, Johnson refers to the testimony about him telling

Stites that he had a van that needed to be hauled off.

Johnson's argument is unclear, but he seems to be

claiming that Stites had a preconceived notion of what

Johnson was requesting, which led to a

misinterpretation of Johnson's request. Again, this is a

question for the jury. It was the jury's role to

determine [*261 what Johnson was requesting and

weigh the credibility of the witnesses. The jury had

ample evidence with which to see through Johnson's

thinly coded statements that made clear his intent to hire

someone to murder his ex-wife.

Next, Johnson claims the evidence at trial was

insufficient to establish that even if he solicited Nodwell

or Stites, he did so with the specific intent that one of

them murder Annie. Once again Johnson cites his

coded statements to Nodwell and Stites which were not

only easily seen through by Nodwell and Stites but also

by the jury in determining Johnson's intent to have his

ex-wife murdered. There was ample evidence that

Johnson intended Nodwell, and then Stites, to murder

Annie.

Finally, Johnson points to the definition of "murder in the

first degree" in the jury instructions and asserts that

there was no evidence that he killed Annie, as she was

not murdered. But solicitation to commit murder does

not require that the solicited crime be completed. Our

Supreme Court has stated that the crime of solicitation

"is complete when the person communicates the

solicitation to another with the requisite mens rea. No

act in furtherance of the target crime needs to

be [*271 performed by either person." State v. DePriest,

258 Kan. 596, 604, 907 P.2d 868 (1995).

There was more than ample evidence to support

Johnson's convictions.

Jury Instruction: Affirmative Defense of Renunciation

Johnson claims the district court erred in advising the

jury about the law of renunciation in Jury Instruction

Nos. 16 and 17 by replacing the terms "manifesting,"

"renunciation," and "purpose," with the terms

"demonstrating," "abandonment," and "plan."

The protocol for reviewing jury instructions on appeal is

well known to the parties and can be found in State v.

Fisher, 304 Kan. 242, 256-57, 373 P.3d 781 (2016).

Jury Instruction Nos. 16 and 17 were appropriate, as

they correctly stated the law on renunciation and were

consistent with K.S.A. 2016 Supp. 21-5303(c) and P1K

Crim. 4th 53.100 (2013 Supp.) and 51.050 (2013

Supp.). Besides, if there had been any error in these

instructions, the rule against invited error would apply.

Jury Instruction Nos. 16 and 17 were given exactly as

requested by Johnson. The invited error doctrine

"effectively binds trial counsel to strategic decisions

inducing judicial rulings with the purpose of obtaining

favorable judgments for their clients." State v. Hargrove,

48 Kan. App. 2d 522, 532, 293 P.3d 787 (2013). A

litigant may not invite error and then complain of the

error on appeal. State v. Verser, 299 Kan. 776, 784, 326

P.3d 1046 (2014).

This claim of error fails.

Sufficiency of Evidence to Disprove Defense 1*281 of

Renunciation

Jury Instruction No. 16 stated: "It is a defense to a

charge of criminal solicitation that the defendant, after

soliciting another person to commit a felony, persuaded

that person not to do so or otherwise prevented the

commission of the felony, under circumstances

demonstrating a complete and voluntary abandonment

of the defendant's criminal plan."

Appendix A. Page 7

Jury Instruction No. 17 stated: "The defendant raises

abandonment as a defense. Evidence in support of this

defense should be considered by you in determining

whether the State has met its burden of proving that the

defendant is guilty. The States burden of proof does not

shift to the defendant.'

Johnson claims that the State failed to disprove that

Johnson persuaded or prevented Nodwell and Stites

from murdering his ex-wife.

As noted in Instruction No. 17, Johnson did not bear the

burden of proving his defense of abandonment; it was

the State's burden to disprove this defense. See K.S.A.

2016 Supp. 21-5108(c); State v. Staten, 304 Kan, 957,

965, 377 P.3d 427 (2016); State v. Bethel, 275 Kan,

456, 474, 66 P.3d 840 (2003).

Johnson's brief second thoughts about going forward

with this murder-for-hire plot were based on his fear of

getting caught. But there is no evidence that he decided

to abandon the plan and tried to prevent Nodwell or

Stites from going forward. [*291 Rather, he simply

shifted his communications to the use of code words to

thinly disguise his true intent. There is no evidence that

he manifested "a complete and voluntary renunciation

of [his] criminal purposes." K.S.A. 2016 Supp. 215303(c). Thus, if there was any error at all, it was the

district court giving an instruction on Johnson's claimed

abandonment of the plan when there is no evidence that

he did, in fact, abandon the plan. The State presented

substantial evidence from which a rational fact-finder

could conclude that Johnson never abandoned the plan

of soliciting Annie's murder.

Jury Instruction: Jurisdiction and Venue

The court instructed the jury in Jury Instruction No. 18

as follows:

"If you find that the defendant committed criminal acts in

this state which were a substantial and integral part of

an overall continuing crime plan, and which were clearly

in partial execution of that plan, the prosecution may be

in this state or any other state in which such acts occur."

Johnson objected to this jury instruction on the basis

that it was not a P1K instruction and because he claimed

there was no evidence that the solicitation continued

from Kansas to Missouri. Now, on appeal, he appears

to be arguing that[*301 the instruction failed to inform

the jury that it must find that the crime occurred in

Johnson County.

As noted, we follow the protocol set forth in State v.

Fisher, 304 Kan. at 256-57 in reviewing the district

court's jury instructions. Further, when an objection to a

jury instruction at trial is different from the argument

presented on appeal, any error should be reversed only

if giving the instruction was clearly erroneous. State v.

Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012); State

v. Ellmaker, 289 Kan. 1132, Syl. ¶ 1, 221 P.3d 1105

(2009).

K.S.A. 2016 Supp. 21-5106 provides: "A person is

subject to prosecution and punishment under the law of

this state if: (1) The person commits a crime wholly or

partly within this state." K.S.A. 2016 Supp. 21-5106(b)

provides that a crime is partly committed within this state

if: "(1) An act which is a constituent and material element

of the offense; (2) an act which is a substantial and

integral part of an overall continuing criminal plan; or (3)

the proximate result of such act, occurs within the state."

Jury Instruction No. 18 was a proper statement of

Kansas law. See State v. Grissom, 251 Kan. 851, 88687, 840 P.2d 1142 (1992). Johnson argues that the

instruction should have informed the jury that the crime

occurred in Johnson County, not in the state. But Jury

Instruction No. 18 related to the authority of the State to

prosecute Johnson for the crime in Kansas. The

instruction containing the elements [*311 of the crime

included the requirement that the State prove that the

crime occurred in Johnson County. The elements

instructions accomplished the task of advising the jury

that it must find that the crime occurred in Johnson

County. We find no error in the court giving Jury

Instruction No. 18.

Kansas Jurisdiction when Evidence Obtained in

Missouri

With respect to the solicitation of Stites, Johnson claims

that the Olathe Police Department illegally exercised its

powers outside of its jurisdiction under K.S.A. 2016

Supp. 22-2401a by conducting an investigation and

obtaining evidence in Kansas City, Missouri. Johnson

relies on State v. Vrabel, 49 Kan. App. 2d 61, 305 P.3d

35 (2013), in which the district court suppressed

evidence obtained outside of the jurisdiction of the

police who conducted a controlled drug buy. Our

Supreme Court held there was no proper request for

assistance that would have extended the territorial limits

of the police under K.S.A. 2014 Supp. 22-2401a(2)(b).

Here, Johnson claims Stites had no authority to exercise

his police powers in Missouri. But Johnson did not move

to suppress the evidence obtained. The evidence was

admitted at trial without this objection being asserted.

K.S.A. 60-404 generally precludes an appellate court

from reviewing an evidentiary challenge absent a timely

and specific [*321 objection. State v. Dupree, 304 Kan.

43, 62, 371 P.3d 862 (2016). Johnson cites no

applicable exception to this rule.

As a second argument, Johnson contends that his

conduct was not a crime in Missouri. Whether his

conduct was a crime in Missouri is irrelevant. K.S.A.

2016 Supp. 21-5106 controls, and it allows for the

prosecution in Kansas when "the person commits a

crime wholly or partly within this state." See K.S.A. 2016

Appendix A. Page 8

Supp. 21-5106(a)(1). Here, part of the crime occurred in

Kansas. Johnson's jurisdictional arguments are without

merit.

Alternative Means

Johnson claims he was charged with alternative means

of committing the crime of solicitation because the jury

was instructed it could convict him of the crime if it found

that he "encouraged or requested" another to commit

the crime of first-degree murder.

Once again, the invited error doctrine applies to bar this

claim because Johnson's proposed jury instruction

informed the jury that it could convict Johnson if it found

that he "intentionally encouraged or requested" another

person to commit first-degree murder. See State v.

Schreiner, 46 Kan. App. 2d 778, 791, 264 P.3d 1033

(2011) (applying the invited error doctrine to an

alternative means claim).

Language in Complaint

Finally, Johnson claims the complaint was defective

because it used the words "encouraged" and

"requested" rather than "encouraging" and

requesting."

State v. Dunn, 304 Kan. 773, 811, 814, 375 P.3d 332

(2015), recognizes the following three types of charging

document defects. First, when it does not show that the

charges are being filed in the correct court and territory.

Second, when it does not allege facts which, if proved

beyond a reasonable doubt, show the commission of a

Kansas crime. Third, when it does not provide adequate

notice of the charges.

Here, Johnson alleges that the complaint did not set out

the essential elements of the crime. But Dunn only

requires the complaint to contain all essential facts of

the crime charged drawn in the language of the statute.

Johnson does not contend the complaint left out

essential facts.

K.S.A. 2016 Supp. 21-5303 states: "Criminal solicitation

is commanding, encouraging or requesting another

person to commit a felony, attempt to commit a felony

or aid and abet in the commission or attempted

commission of a felony for the purpose of promoting or

facilitating the felony." Johnson seems to contend that

the complaint must charge the defendant using the

gerunds used in the statute as opposed to using the past

tense of the verb form to indicate criminal conduct which

occurred in the past but within the applicable statute of

limitations. We reject such a frivolous F*341 notion. The

complaint adequately contains the facts which, if proved

beyond a reasonable doubt, show that Johnson

committed criminal solicitation, and he was provided

adequate notice of the charges.

Affirmed

Appendix A. Page 9

Apx C. Decision of the Supreme Court of Kansas, denying review

State v. Johnson, 2018 Kan. LEXIS 712

Supreme Court of Kansas

August 31, 2018, Decided

No. 110,837

Reporter 2018 Kan. LEXIS 712 *

STATE OF KANSAS, Appellee, v. RHEUBEN JOHNSON, Appellant.

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History: State v. Johnson, 404 P.3d 362, 2017 Kan. App. Unpub. LEXIS 872 (Kan. Ct.

App., Oct. 13, 2017)

Judges: r*11 LAWTON R. NUSS, Chief Justice. Beier, J., not participating.

Opinion by: LAWTON R. NUSS

Opinion

ORDER

Appellant's Petition for Review filed November 13, 2017, is denied.

Appellant's Supplemental Petition for Review filed February 26, 2018, is denied.

BY ORDER OF THE COURT this 31st day of August 2018.

Is! Maria J. Luckert for

LAWTON R. NUSS,

Chief Justice

Beier, J., not participating.

Appendix C. Page 1

Additional material

f rom this filing is

available in the

Clerk's Office.