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State v. Boone1/30/2004
theory of events, this court's function is to determine whether a basis of evidence exists to support the jury's determination of guilt. We conclude that sufficient evidence supported the defendant's convictions of aggravated arson and felony murder.
Moreover, even if we were to conclude that insufficient evidence supported the defendant's aggravated arson conviction, the felony-murder conviction depended not only on the aggravated arson but also depended upon the aggravated robbery. The jury was instructed that the felony-murder charge could be based on either aggravated arson or aggravated robbery. The defendant does not challenge his aggravated robbery conviction on appeal. In State v. Davis, 247 Kan. 566, 573, 802 P.2d 541 (1990), this court concluded that
" defendant's conviction for felony murder need not be vacated because of a rule requiring that a general guilty verdict be set aside if the jury was instructed that it could find the defendant guilty of felony murder on any two or more independent felonies, and one of the felonies is insufficient, if the jury expressly found a legally sufficient felony to support the murder conviction."
2. Lesser Included Offense Instructions
The defendant did not request any lesser included instructions at trial but argues on appeal that the trial court should have instructed the jury on the lesser included offenses of second-degree murder and involuntary manslaughter under the premeditated murder charge. The jury convicted the defendant of first-degree murder under the combined theories of premeditation and felony murder without reaching an agreement as to which theory applied.
Where there is substantial evidence to support a conviction for a lesser offense, the trial judge is required to instruct on the lesser offense. However:
"'When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required. [Citations omitted.]" State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001).
The underlying felonies in this case were aggravated arson or aggravated robbery. As discussed in the previous issue, the evidence of the underlying felony of aggravated arson was not weak, inconclusive, or conflicting. The evidence of aggravated robbery in this case was likewise strong. The trial court was not therefore obligated to give lesser included instructions for the felony murder.
The question remains whether the defendant was entitled to instructions under the charge of first-degree premeditated murder. In State v. Hoge, 276 Kan. 801, 80 P.3d 52 (2003), the defendant, as in this case, was convicted under the combined theories of premeditated and felony murder without reaching an agreement as to which theory applied. Hoge appealed the trial court's refusal to give lesser included instructions under the premeditated murder theory because the evidence of the underlying felony was not weak or inconclusive. We concluded that because the jury was divided regarding the theory for Hoge's first-degree murder conviction, this court should review each theory separately to determine whether the jury should have been instructed on lesser included crimes. 276 Kan. at ___; see State v. Douglas, 274 Kan. 96, 103-105, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003); State v. Gilbert, 272 Kan. 209, 213-15, 32 P.3d 713 (2001); Branning, 271
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