                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                               No. 119,660

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                            JOSEPH J. CRAIG,
                                               Appellant.


                                   SYLLABUS BY THE COURT

1.
        When reviewing jury instructions, an appellate court considers all the instructions
together as a whole and does not isolate any one instruction.


2.
        A court need not give a voluntary intoxication instruction unless sufficient proof
exists to establish intoxication to the extent of impairing the defendant's ability to form
the requisite intent for the charged crime.


        Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed May 1, 2020.
Affirmed.


        Ryan J. Eddinger, of Kansas Appellate Defender Office, was on the brief for appellant.


        Jason B. Oxford, assistant county attorney, Krista Blaisdell, county attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


                                                    1
       BILES, J.: A jury found Joseph J. Craig guilty of both first-degree felony murder
and second-degree intentional murder for a homicide that occurred under the guise of a
drug transaction. In this direct appeal, Craig claims the district court erred when it
sentenced him on the more serious felony murder instead of declaring a mistrial because
the jury convicted him of two murder offenses for the same killing. He also argues the
court should have given an instruction on voluntary intoxication since there was
testimony he drank alcohol and smoked marijuana before he fired the three gunshots that
killed his victim. We affirm.


                        FACTUAL AND PROCEDURAL BACKGROUND

       Craig, Gabrielle Williams, Robyn Brown, and a fourth person were drinking
alcohol and smoking marijuana one evening at Williams' apartment in Junction City.
Williams proposed robbing David Phillips by luring him there for a drug transaction. She
thought someone in the group could get Phillips' gun, take his money and marijuana at
gunpoint, and then kill him. The fourth person did not want to be involved, so he left.
Later that night, Williams texted Phillips to invite him over.


       When he arrived, the four smoked marijuana in the bedroom. Williams sat on
Phillips' lap. She told him his gun was poking her, so he put it on the floor with his black
Carhartt jacket. While he was rolling a marijuana joint, Williams got the gun. Shortly
after that, Craig went into the bathroom and Williams followed with the gun. Craig asked
if she was "ready to go through with the plan." She shook her head indicating "no."


       When the two returned, Phillips was still rolling a joint and had his head down.
Craig put the gun to Phillips' head and pulled the trigger, but it misfired. Hearing the
clicking sound, Phillips looked up and asked Craig to give back his gun. The two men


                                              2
went into the living room. According to Brown, Phillips seemed to think it was some
kind of joke. Craig again pointed the gun at Phillips, telling him to get down.


       At that moment, Williams grabbed Phillips' backpack with marijuana in it and
jumped out the window. Brown left through the front door. She saw Phillips kneeling and
Craig hovering over him with the gun. After she got out, Brown smoked a cigarette in the
parking lot and saw Craig fire three shots into Phillips' head. Williams heard the gunshots
while running away.


       Junction City police discovered Phillips' black Carhartt jacket at Craig's residence.
Witnesses indicated Phillips was wearing it when he went to Williams' apartment the
night he was killed. The jacket had both Craig's and Phillips' DNA on it.


       The State charged Craig with first-degree murder under theories of premeditated
murder and felony murder, conspiracy to commit first-degree premeditated murder,
aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession
of a firearm by a convicted felon. At trial, the district court instructed the jury on the
charged crimes, as well as second-degree intentional murder as a lesser included offense
of first-degree premeditated murder. The jury returned guilty verdicts on all charges
except premeditated murder. For the homicide, the jury convicted him of both felony
murder and second-degree intentional murder.


       At sentencing, the court dismissed the second-degree murder conviction. It
sentenced Craig to life without the possibility of parole for 25 years for the felony-murder
conviction and an additional 537 months in prison for the remaining convictions. Craig
directly appeals to this court. Jurisdiction is proper. See K.S.A. 2019 Supp. 22-3601(b)
(life sentence cases permitted to be directly taken to Supreme Court); K.S.A. 60-2101(b)


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(Supreme Court jurisdiction over direct appeals governed by K.S.A. 2019 Supp. 22-
3601).


                   THE TWO MURDER CONVICTIONS FOR THE SAME KILLING

         Craig claims the court erred in its handling of the jury's guilty verdicts for felony
murder and second-degree intentional murder. First, he argues his due process rights were
violated because the jury in his view must have had a reasonable doubt about both the
premeditation and felony-murder theories because it found him guilty of second-degree
intentional murder. He bases this on the wording of Instruction No. 14. It stated: "If you
have a reasonable doubt about the guilt of the defendant as to the crime of murder in the
first degree on both theories, then consider whether the defendant is guilty of murder in
the second degree."


         Second, he contends that after the jury was discharged, these two guilty findings
were "legally irreconcilable," so the only remedy was to order a new trial. For this, Craig
relies on K.S.A. 22-3421 ("If the verdict is defective in form only, it may be corrected by
the court, with the assent of the jury, before it is discharged.") and State v. Hernandez,
294 Kan. 200, 205, 273 P.3d 774 (2012) (when faced with inconsistent verdicts, a trial
court has a duty to order the jury to reconsider and correct its verdicts).


Additional facts

         At trial, the district court instructed the jury on (1) felony murder, (2) premeditated
murder, and (3) intentional second-degree murder as a lesser included offense of
premediated murder.




                                                4
          Instruction No. 14 addressed the State's two theories for first-degree murder; it
stated:


                  "The State has charged the defendant with one offense of murder in the first
          degree and has introduced evidence on two theories of proving this crime.


                  "When evidence is presented on the two theories of proving the crime charged,
          you must consider both theories in arriving at your verdict.


                  "In Instruction No. 13, the Court has set out the claims that must be proved by
          the State before you may find the defendant guilty of premeditated murder.


                  "In Instruction No. 12, the Court has set out the claims that must be proved by
          the State before you may find the defendant guilty of the killing of a person while the
          defendant was committing or attempting to commit aggravated robbery.


                  "If you do not have a reasonable doubt from all the evidence that the State has
          proven murder in the first degree on either or both theories, then you should enter a
          verdict of guilty.


                  "If you have a reasonable doubt about the guilt of the defendant as to the crime
          of murder in the first degree on both theories, then consider whether the defendant is
          guilty of murder in the second degree." (Emphases added.)


          Instruction No. 15 alerted the jury about the lesser included offense of second-
degree murder. It stated,


                  "The offense of premeditated murder in the first degree with which defendant is
          charged includes the lesser offense of murder in the second degree.




                                                       5
                "You may find the defendant guilty of first degree murder, second degree or not
      guilty.


                "When there is a reasonable doubt as to which of two or more offenses
      defendant is guilty, he may be convicted of the lesser offense only."


      Instruction No. 16 addressed the elements of second-degree murder, providing:


                "If you do not agree that the defendant is guilty of premeditated murder in the
      first degree, you should then consider the lesser included offense of murder in the second
      degree.


                "To establish this charge, each of the following claims must be proved:


                "1. The defendant intentionally killed David Phillips.


                "2. This act occurred on or about the 25th day of January, 2016, in Geary County,
      Kansas." (Emphasis added.)


      Instruction No. 17 described the sequencing of the first-degree murder charge with
the second-degree murder charge, stating:


                "The defendant is charged with one offense of premeditated murder in the first
      degree. This verdict instruction will guide you on the verdicts you shall consider.


                "You may find the defendant guilty of murder in the first degree; or murder in the
      second degree; or not guilty.


                "When there is a reasonable doubt as to which of two or more offenses defendant
      is guilty, he may be convicted of the lesser offense only. . . .



                                                     6
                  "First, you shall consider whether the defendant is guilty of murder in the first
       degree. If you find defendant is guilty of murder in the first degree, the Presiding Juror
       shall sign the applicable verdict form and, in addition, you shall then determine the
       alternative theory or theories contained in [verdict form] Number 5, Number 6 or Number
       7. . . .


                  "Second, if you do not find the defendant guilty of murder in the first degree, you
       should then consider the lesser offense of murder in the second degree as defined in
       Instruction No. 16.


                  "Third, if you do not find the defendant guilty of second degree murder, you shall
       find defendant not guilty." (Emphases added.)


       Shortly after discharging the jury, the district court questioned the two murder
verdicts, saying "I think that we need to talk about that. Maybe not today. But I want the
parties to determine and maybe do a little research on where that puts us."


       At sentencing, the court revisited the issue. Craig moved for a new trial and
judgment notwithstanding the verdict. He insisted the jury must have had reasonable
doubt on both first-degree murder theories because it convicted him of second-degree
murder. He based this on Instruction No. 14's wording. The State contended the felony-
murder conviction should stand and serve as the basis for sentencing. It also argued the
court should not dismiss the second-degree murder conviction. Instead, the State
contended the court should just not sentence him on that conviction.


       The district court decided the jury must have misunderstood the instructions
because they were each legally appropriate. It dismissed the second-degree murder
conviction over the State's objection and sentenced Craig for the felony murder over his
objection. The State does not cross-appeal the dismissal of the second-degree murder
conviction, so that action is not before us.
                                                       7
Standard of review

       This issue presents solely a question of law, making de novo review appropriate.
See State v. Sprung, 294 Kan. 300, Syl. ¶ 2, 277 P.3d 1100 (2012) ("Whether convictions
are multiplicitous is a question of law subject to de novo review."); State v. McKissack,
283 Kan. 721, 733, 156 P.3d 1249 (2007) (noting "the issue of inconsistent verdicts" and
the question of "whether such inconsistency warrants the relief requested" are legal
questions).


Discussion

       We review jury instructions as a whole and do not isolate any one instruction.
State v. Sisson, 302 Kan. 123, 130-31, 351 P.3d 1235 (2015). If the instructions properly
and fairly state the law as applied to the facts in a case, and the jury could not have been
reasonably misled by them, those instructions will not result in reversible error even if
they were in some manner erroneous. State v. Brice, 276 Kan. 758, 761, 80 P.3d 1113
(2003).


       The elements of felony murder are: (1) "the killing of a human being" and (2) that
killing is "committed . . . in the commission of, attempt to commit, or flight from any
inherently dangerous felony." K.S.A. 2019 Supp. 21-5402(a)(2). The elements of second-
degree intentional murder are: (1) "the killing of a human being" and (2) that killing is
"committed . . . intentionally." K.S.A. 2019 Supp. 21-5403(a)(1). The Kansas felony-
murder statute only requires proof that the defendant engaged in dangerous, felonious
conduct and that a death occurred as a result of that conduct. Intent to kill is not an
element of felony murder. State v. Patterson, 311 Kan. __, 455 P.3d 792, 798 (2020). "It
is felonious intent, rather than homicidal intent, that provides the malice and intent



                                              8
required for a first-degree felony-murder conviction." State v. Seba, 305 Kan. 185, 196,
380 P.3d 209 (2016).


       Instruction No. 12 correctly informed the jury about the elements of felony-
murder. It stated "[t]o establish [the felony murder] charge, each of the following claims
must be proved: 1. The defendant, or another, killed David Phillips," and "2. The killing
was done while defendant was committing or attempting to commit aggravated robbery. .
. ." As the district court noted, the instructions defining both felony murder and second-
degree murder were legally and factually appropriate. And there is no claim otherwise.


       Instruction No. 14 correctly stated that if the jury had a reasonable doubt about
Craig's guilt as to the first-degree murder charge on both theories, then it should consider
whether he was guilty of second-degree murder. And Instructions No. 15, No. 16, and
No. 17 indicated if the jury had a reasonable doubt about Craig's guilt for premeditated
murder, then it should consider the second-degree murder crime. See State v. McLinn,
307 Kan. 307, 324, 409 P.3d 1 (2018) (second-degree intentional murder is a lesser
included offense of first-degree premeditated murder); K.S.A. 2019 Supp. 21-5109(b)(1)
(no lesser degrees of felony murder).


       But the jury obviously thought it could convict Craig of both felony murder and
second-degree murder simultaneously, despite being told in Instruction No. 14 to
consider second-degree murder if it had a reasonable doubt on both theories of first-
degree murder. Such a belief seems plausible given that Instruction Nos. 16 and 17 told it
to consider the second-degree murder offense if it did not find Craig guilty of
premeditated murder. And, of course, it acquitted him of that offense.


       Even so, all instructions were legally correct. The jury's second-degree murder
verdict does not prove, as Craig contends, that the jury must have had a reasonable doubt
                                             9
about the elements of felony murder. Instead, it shows the jury followed Instruction Nos.
16 and 17 and had a reasonable doubt Craig committed premeditated murder. The Due
Process Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt
of each element of the crime charged. See State v. Douglas, 230 Kan. 744, 745, 640 P.2d
1259 (1982). And for the reasons explained, the discrepancy Craig asserts does not
establish that the jury failed to find each element of the felony murder beyond a
reasonable doubt.


       Craig's second argument asserts that a new trial is required because the verdicts
were irreconcilable. It fails as well. In the case Craig relies on, Hernandez, 294 Kan. at
207, there were irreconcilable verdicts when a jury convicted the defendant of both
aggravated indecent liberties with a child and attempted aggravated indecent liberties
with a child based on the same conduct. 294 Kan. at 205-06. The Hernandez court held
those verdicts were "legally and factually inconsistent" because "[t]he trial court could
not legally enter judgment on either verdict because the jury's finding on the other verdict
precludes such judgment." 294 Kan. at 207. It determined the trial court erred by
assuming it reconciled the conflicting verdicts at sentencing "as if the charges had been
brought in the alternative, or as if the charges merged so that the defendant was only
convicted of the greater offense." 294 Kan. at 207. The Hernandez court held the trial
court should have ordered the jury to reconsider and correct its verdicts. 294 Kan. at 204-
05. And since that did not happen, the court reversed the convictions and remanded the
case for a new trial. 294 Kan. at 207.

       But unlike Hernandez, Craig's two murder verdicts are not inherently
irreconcilable. See 294 Kan. at 204 ("It is a legal impossibility to both attempt the
commission of a crime and complete the commission of the same crime, because the
failure to complete commission of the crime is an element of attempt."). Premeditated
murder and felony murder are separate theories of the same offense, i.e., first-degree

                                             10
murder. State v. Thach, 305 Kan. 72, 87, 378 P.3d 522 (2016); K.S.A. 2019 Supp. 21-
5402(d) (felony murder is an alternative method of proving murder in the first degree and
is not a separate offense of premeditated murder). And second-degree intentional murder
is not mutually exclusive from premeditated murder, but simply a lesser degree of the
same offense, i.e., premeditated murder. McLinn, 307 Kan. at 324.


       We also note the district court did not err by discharging the jury without having it
clarify its verdict, as Craig's appellate brief might be read to suggest. See K.S.A. 22-3421
("If the verdict is defective in form only, it may be corrected by the court, with the assent
of the jury, before it is discharged."). As discussed above, there was no defect because the
jury found each required element of both offenses. And since Craig cites K.S.A. 22-3421,
but offers no rationale why these circumstances implicate it, we hold there was no defect
in form. The instructions permitted the jury to end up where it did. K.S.A. 22-3421 has
no application here.


       To sum up, Craig fails to demonstrate either claim: that his first-degree murder
sentence was imposed in violation of his due process right to have the jury find each
element of the offense beyond a reasonable doubt, or that the jury's first- and second-
degree murder verdicts were so irreconcilable as to require a new trial. The court properly
sentenced Craig on the first-degree felony-murder conviction. See State v. Harris, 310
Kan. 1026, 453 P.3d 1172 (2019) (upholding the district court's imposition of sentence on
a more severe crime when jury convicted defendant of two offenses based on the same
criminal act).




                                             11
                       THE VOLUNTARY INTOXICATION INSTRUCTION

       Craig claims the evidence about his use of alcohol and marijuana and unclear
communication shortly before the shooting made it appropriate to give a voluntary
intoxication instruction. We disagree.


Standard of review

       An appellate court reviews instructional error claims in multiple steps. First, it
decides whether the issue was properly preserved. Second, it considers whether the
instruction was legally and factually appropriate. It exercises unlimited review of these
questions. And when the reviewing court finds error, it considers whether that error is
reversible. State v. Gentry, 310 Kan. 715, 720, 449 P.3d 429 (2019).


       If the defendant failed to properly request the instruction in the district court, the
clearly erroneous standard applies to whether an instructional error is reversible. See
K.S.A. 2019 Supp. 22-3414(3) ("No party may assign as error the giving or failure to
give an instruction . . . unless the party objects thereto before the jury retires to consider
its verdict stating distinctly the matter to which the party objects and the grounds of the
objection unless the instruction or the failure to give an instruction is clearly erroneous.");
State v. Murrin, 309 Kan. 385, 392, 435 P.3d 1126 (2019) (clear error for unpreserved
instructional error claim). Craig agrees he did not request this instruction during trial.


Discussion

       While not a defense to general intent offenses, voluntary intoxication may be used
to negate the intent element of specific intent crimes. Seba, 305 Kan. at 211. K.S.A. 2019
Supp. 21-5205(b) declares:


                                              12
       "An act committed while in a state of voluntary intoxication is not less criminal by reason
       thereof, but when a particular intent or other state of mind is a necessary element to
       constitute a particular crime, the fact of intoxication may be taken into consideration in
       determining such intent or state of mind."


       Craig claims a voluntary intoxication instruction would have been legally
appropriate for the charged offenses of premeditated murder, second-degree murder,
conspiracy to commit premeditated murder, and conspiracy to commit aggravated
robbery. Of those, premeditated murder and second-degree intentional murder are
specific intent crimes. State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 (2009) ("'The
specific intent required to be proved for conviction on a premeditated first-degree murder
charge is premeditation.'"); State v. Deal, 293 Kan. 872, 883, 269 P.3d 1282 (2012)
(intentional second-degree murder is a specific intent crime). But the remaining
conspiracy offenses are not as obvious, and they are the only convictions that could be
affected by this appeal.


       Some caselaw undercuts Craig's claim that conspiracy to commit aggravated
robbery is a specific intent crime. He relies on State v. Warren, 252 Kan. 169, 174, 843
P.2d 224 (1992), in which the court held conspiracy to commit a robbery was a specific
intent crime. But in State v. Butler, 307 Kan. 831, 852, 416 P.3d 116 (2018), the court
held that the mental state needed to be proved for convicting the defendant for conspiracy
to commit aggravated robbery was "'knowingly.'"


       We need not resolve that question, however, because the record demonstrates a
voluntary intoxication instruction was not factually appropriate in Craig's case, so this
claim of error fails on that basis. A court need not give a voluntary intoxication
instruction unless sufficient proof exists to establish intoxication to the extent of
impairing the defendant's ability to form the requisite intent for the charged crime. State

                                                    13
v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014); see also State v. Becker, 311
Kan. 176, Syl. ¶ 6, 459 P.3d 173 (2020) (need for "direct evidence" of impairment in a
premeditated first-degree homicide trial). That evidence is lacking in Craig's case.


       The trial evidence on which Craig relies comes from the testimony of Williams
and Jeremiah Warren, the person who left before Phillips came to the apartment. Both
made passing comments about Craig drinking alcohol and smoking marijuana the
evening Phillips died. Williams testified everyone was smoking marijuana and drinking
alcohol, and when she was in the bathroom with Craig just before the shooting, he was
"mumbling to himself." But the record is silent about how much marijuana and alcohol
Craig consumed or whether this "mumbling" happened only when he was intoxicated to
the level of impairing his ability to form specific intent.


       In State v. Hilt, 299 Kan. 176, 193, 322 P.3d 367 (2014), the court held evidence
pointing to consumption, but not intoxication to the extent that the defendant's ability to
form the requisite intent was impaired, was not enough to warrant a voluntary
intoxication instruction. See Becker, 459 P.3d at 184 (a reviewing court will not infer
impairment based on evidence of consumption alone). And in State v. Kidd, 293 Kan.
591, 596, 265 P.3d 1165 (2011), the court held evidence showing the defendant
consumed alcohol, made "'crazy' statements" and seemed "'buzzed'" was insufficient to
require a voluntary intoxication instruction. In State v. Hernandez, 292 Kan. 598, 607,
257 P.3d 767 (2011), the court determined evidence of alcohol and marijuana
consumption and testimony that the defendant was "'high' or 'intoxicated'" was not
sufficient to require a voluntary intoxication instruction. Similarly, Williams' testimony is
not enough to justify the instruction.


       Craig also relies on Warren's statements that he observed Craig "in an extreme
state of intoxication shortly before the shooting occurred." He points out Warren's
                                             14
testimony that Craig was unable to stand or communicate clearly. But the record reflects
this testimony, when read in context, does not necessarily show Craig was extremely
intoxicated that night. At most, it appears, neutral or ambiguous about Craig's
impairment.


       During his cross-examination, defense counsel asked Warren "how intoxicated
was Mr. Craig on that evening?" He answered, "Pretty drunk. He was sitting down."
Counsel then asked "do you mean that he was so intoxicated he couldn't stand up?"
Warren responded "he was on the bed laying down with his eyes closed. I had to nudge
him a little bit to get up. So, I don't know if he was just tired and drunk at the same time,
or if he was just that drunk." This back-and-forth cannot show Craig lacked the ability to
form the requisite intent, and Brown's testimony describing the moment immediately
before the killing is also pertinent. She said Craig "was just relaxed, just sitting. We was
[sic] all high."


       The evidence about Craig's state of mind does not establish any impairment
deprived him of the ability to form the requisite mens rea. Indeed, other evidence strongly
suggests he was not so intoxicated and was able "to reason, to plan, to recall, or to
exercise motor skills." Betancourt, 299 Kan. at 142. For example, when discussing the
plan, according to Williams, he "was stating that he wanted [Phillips'] gun." This suggests
he could think and communicate what he wanted to get by robbing and killing his victim.
And by all accounts, Craig was also able to walk to the bathroom and back to the
bedroom without anyone's assistance, meaning he could exercise motor skills. Craig and
Williams discussed their plan before 7 p.m., and he remembered and successfully carried
it out after 11 p.m.


       Nothing in the record points to memory loss or inability to recall events before or
during the commission of the crimes. See Betancourt, 299 Kan. at 141 (loss of memory
                                          15
or inability to recall incidents before or during the commission of the crime may show an
inability to form the required intent). When he pulled the trigger, Craig was capable of
processing that the gun misfired and recover from that with another attempt. See 299
Kan. at 142-43 (while there was evidence of consumption of alcohol and cocaine and the
defendant's own statement that he was "'pretty effed up,'" there was other evidence
showing he could mentally and physically function; holding no error to omit a voluntary
intoxication instruction); Hilt, 299 Kan. at 193 (noting evidence showing the defendant
was high and made crazy statement; holding no error based on other evidence suggesting
the ability to form specific intent).


       Finally, we observe there was not much made of Craig's intoxication at trial.
Defense counsel briefly mentioned Craig was drunk and high during closing argument
but certainly did not argue its significance or any implication to the jury. Stated
differently, Craig never relied on voluntary intoxication in defending himself. See
Betancourt, 299 Kan. at 143 (noting defense did not emphasize evidence of intoxication
introduced at trial or argue voluntary intoxication to the jury). His effort to create an
alternate reality on appeal is unavailing.


       From this record, we hold a voluntary intoxication instruction would not have
been factually appropriate.


       Affirmed.
       MICHAEL E. WARD, Senior Judge, assigned. 1




1
 REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,660
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Chief Justice Lawton R. Nuss.

                                              16
