                                        No. 119,749

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                   REGINALD A. KANE,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       When a defendant challenges the sufficiency of the evidence presented at trial,
appellate courts defer to the jury's apparent factual findings by reviewing the evidence in
the light most favorable to the prosecution. An appellate court will not set aside a
conviction for insufficient evidence if the court is convinced a rational fact-finder could
have found the defendant guilty beyond a reasonable doubt.


2.
       For the evidence to be sufficient to support a challenged conviction, there must be
evidence presented at trial to support each element of the crime.


3.
       To prove attempted first-degree murder, the State must prove the defendant (1)
attempted to commit a premeditated murder of a human being; (2) took an overt act
toward perpetrating that murder; and (3) failed to complete the crime.




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4.
       Premeditation is the process of thinking about a proposed killing before engaging
in homicidal conduct. Premeditation requires some opportunity for reflection or
deliberation—to have thought the matter over beforehand—though an act need not have
been planned beforehand to be premeditated.


5.
       The State is not required to present direct evidence of either intent or
premeditation. Instead, premeditation, deliberation, and intent may be inferred from the
established circumstances of a case, provided the inferences are reasonable.


6.
       Premeditation may be proved by circumstantial evidence. Fact-finders and courts
called on to evaluate premeditation circumstantially consider, among other matters, (1)
the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before
and after the killing; (4) threats and declarations of the defendant before and during the
occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered
helpless. Not all of these considerations are relevant in every instance, and some carry
more weight than others under the facts of a particular case.


7.
       K.S.A. 2018 Supp. 21-5408(a)(2) defines kidnapping as "the taking or confining
of any person, accomplished by force, threat or deception, with the intent to hold such
person . . . to facilitate flight or the commission of any crime."

8.
       If a taking or confinement is alleged to have been done to facilitate the
commission of another crime, to prove kidnapping, evidence must show that the resulting
movement or confinement (1) must not be slight, inconsequential, and merely incidental


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to the other crime; (2) must not be of the kind inherent in the nature of the other crime;
and (3) must have some significance independent of the other crime in that it makes the
other crime substantially easier of commission or substantially lessens the risk of
detection.


9.
        This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position.


10.
        A court may find a taking or confinement has independent significance from
another crime for purposes of the kidnapping statute not only when an act actually makes
a crime substantially easier to commit but also when the act has the potential to do so,
even if the defendant never received the anticipated benefit. It is the nature of the act, not
its result, that is legally important.


        Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed November 27,
2019. Affirmed.


        Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before POWELL, P.J., HILL and WARNER, JJ.


        WARNER, J.: Reginald Kane robbed a restaurant, during which he escorted an
employee at gunpoint into the restaurant and shot the restaurant's owner while leaving.
The State charged Kane with various offenses, including attempted first-degree murder
and kidnapping, and a jury found him guilty of all crimes charged. On appeal, Kane seeks


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to overturn his attempted first-degree murder and kidnapping convictions, arguing
insufficient evidence exists to support them. We find that the evidence, viewed in the
light most favorable to the State, is sufficient to support his convictions and affirm.


                                     FACTUAL BACKGROUND

       By 9 p.m. on June 9, 2017, Ruben's Mexican Grill in Wichita had closed and its
doors locked. Four employees remained inside: Ruben Acosta, the owner, was at the front
of the restaurant counting money at the cash register counter, under which he kept a .38
revolver. Umberto Fernandez, Boris Guzman-Mendoza, and Jose Trejos-Gonzales were
cleaning in the back of the restaurant. Trejos-Gonzales was washing dishes at a sink next
to the restaurant's back entrance.


       At around 10 p.m., Fernandez propped open the back door and went outside to
throw trash in the dumpster. Kane, wearing black clothing and a black mask, approached
Fernandez, placed a semiautomatic pistol to his back, and said, "Money." Kane took
Fernandez inside the restaurant through the back door, where they encountered Trejos-
Gonzales. Upon reentering, Fernandez screamed that somebody was in the restaurant and
then escaped through a side door.


       Kane then turned his pistol on Trejos-Gonzales. He repeated, "Money," and began
escorting Trejos-Gonzales to the front of the restaurant. When Kane and Trejos-Gonzales
came upon Guzman-Mendoza, Kane again said, "Money." He then urged both employees
forward. Once in the front, Kane approached Acosta, aimed the gun at Acosta's forehead,
demanded money, and took the money and a bank bag lying on the counter.


       The witnesses' accounts differ as to how the ensuing gunfight began:




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    Trejos-Gonzales testified that as Kane walked away with the money, he dropped
      the bank bag and turned around to pick it up. Then Kane and Acosta began
      shooting at each other, though Trejos-Gonzales did not know who fired first.


    Guzman-Mendoza testified Kane took the money and began to leave, but returned
      to the counter to take a blue bank bag. Kane then started to leave again and fired
      from about 5 or 10 paces from Acosta. Guzman-Mendoza did not know, however,
      if Kane fired at Acosta.


    Acosta testified Kane took the money and the bank bag and began walking away.
      Kane then turned around and said, "Sorry, is the last day you will see this world,
      you mother fucker," and shot at him. Kane's shot went several feet over Acosta's
      head, and Acosta retrieved his revolver and fired back. During the exchange of
      shots, Acosta shot Kane, who dropped the money before running out the back
      door. Kane shot Acosta twice before Acosta collapsed.


      Police arrived at the restaurant and transported Acosta to the hospital. While
examining the scene, officers collected 15 empty 9mm casings. At about 10:20 p.m.,
police responded to a call of another shooting at Kane's apartment. Officers transported
Kane to the hospital after finding him on his front porch with a gunshot wound. Inside the
apartment, officers found a manual for a 9mm Glock 17 handgun, a gun cleaning kit,
multiple gun holsters, and a 9mm hard gun case, but no gun. They also found blood-
soaked black clothing that matched the description of the clothes the robber had been
wearing. Various witnesses, including Kane's girlfriend, provided statements tying Kane
to the robbery at Ruben's. Finally, the bullet recovered from Kane's abdomen was a .38—
the same caliber Acosta fired from his revolver.


      Kane was charged with multiple offenses arising from the robbery and
accompanying acts. The case went to trial on aggravated robbery, aggravated burglary,

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aggravated battery, attempted first-degree murder, kidnapping, three counts of aggravated
assault, and criminal possession of a weapon, and the jury convicted Kane on all charges.
He now appeals, arguing there was insufficient evidence to convict him of kidnapping
(associated with forcing Fernandez into the restaurant's back door at gunpoint) and
attempted first-degree murder (for threatening and shooting at Acosta).


                                        DISCUSSION

       Appellate courts are courts of review. Appellate judges are not present to hear
witnesses' testimony, to observe their demeanor, or to weigh that testimony against the
other evidence presented at a trial. Thus, appellate courts "'do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations'" when a case is
challenged on appeal. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
Instead, we rely on juries to observe and listen to the witnesses and to render a verdict
based on the jurors' assessment of the evidence presented.


       For these reasons, when a defendant in a criminal case challenges his or her
conviction by questioning the sufficiency of the evidence presented at trial, appellate
courts defer to the jury's apparent factual findings by "'reviewing all the evidence in the
light most favorable to the prosecution.'" 307 Kan. at 668. An appellate court will not set
aside a conviction for insufficient evidence if the court "'is convinced a rational factfinder
could have found the defendant guilty beyond a reasonable doubt.'" 307 Kan. at 668.


       This does not mean, however, that appellate review of the evidence's sufficiency is
meaningless. Rather, for the evidence below to have been sufficient, "there must be
evidence supporting each element of a crime." State v. Kettler, 299 Kan. 448, 471, 325
P.3d 1075 (2014). Here, Kane argues there was insufficient evidence to prove an element
of each of the two convictions he challenges. In particular, he asserts no credible
evidence presented at trial shows premeditation (an element of attempted first-degree



                                              6
murder). Kane also argues there was insufficient evidence of kidnapping because his
interactions with Fernandez did not facilitate the robbery as required by K.S.A. 2018
Supp. 21-5408(a)(2). We consider each of these claims in turn.


   1. There was sufficient evidence presented at trial to support Kane's attempted
      first-degree murder conviction.

       To prove attempted first-degree murder, the State had to show Kane
(1) attempted to commit a premeditated murder of a human being; (2) took an overt act
toward perpetrating that murder; and (3) failed to complete the crime. State v. Wilson, 30
Kan. App. 2d 498, 499-500, 43 P.3d 851, rev. denied 274 Kan 1118 (2002). Kane claims
there was insufficient evidence to convict him of this offense, arguing neither direct proof
nor circumstantial evidence of premeditation exists to sustain his conviction.


       "Premeditation is the process of thinking about a proposed killing before engaging
in homicidal conduct." State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 (2001).
Premeditation requires some opportunity for reflection or deliberation—"to have thought
the matter over beforehand"—though an act need not have been planned beforehand to be
premeditated. Kettler, 299 Kan. at 466; see Scott, 271 Kan. at 108; PIK Crim. 4th 54.150
(2018 Supp.).


       The State need not present direct evidence of premeditation. Kettler, 299 Kan. at
466. "Instead, premeditation, deliberation, and intent may be inferred from the
established circumstances of a case, provided the inferences are reasonable." 299 Kan. at
467. That is, "[i]ntent . . . may be shown by circumstantial evidence, and a person is
presumed to intend all the natural consequences of his acts." State v. Childers, 222 Kan.
32, 37, 563 P.2d 999 (1977).


       In practice, premeditation is often proven by circumstantial evidence. State v.
Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 (2002). Fact-finders and courts called on to


                                             7
evaluate premeditation circumstantially consider, among other matters, "(1) the nature of
the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the
killing; (4) threats and declarations of the defendant before and during the occurrence;
and (5) the dealing of lethal blows after the deceased was felled and rendered helpless."
State v. Scaife, 286 Kan. 614, 617-18, 186 P.3d 755 (2008). Not all of these
considerations are relevant in every instance, and some carry more weight than others
under the facts of a particular case. State v. Smith-Parker, 301 Kan. 132, 153, 340 P.3d
485 (2014).


       Here, the State presented both direct and circumstantial evidence of Kane's
premeditation. Most significantly, Acosta testified that Kane told him that it was "the last
day [Acosta] will see this world" before he shot in his direction. Kane attempts to
discredit the testimony, noting neither Guzman-Mendoza nor Trejos-Gonzales
corroborated this statement and Acosta's preliminary statement did not describe this
threat. But it is not the province of this court to resolve evidentiary conflicts or reassess
witnesses' credibility. Chandler, 307 Kan. at 668. The jury had the opportunity to hear
Acosta's testimony and evaluate the veracity of his account—especially when Kane
highlighted on cross-examination the difference between Acosta's testimony at trial and
at the preliminary hearing. Viewing this evidence in the light most favorable to the State,
Kane's threat provides sufficient proof of premeditation for the attempted first-degree
murder charge.


       The record also includes circumstantial evidence of premeditation. While many
circumstances the State includes in its brief could be attributed to the robbery itself—
carrying a semiautomatic pistol, wearing black, using the pistol to convince the restaurant
employees to give him the bag of money—Acosta testified that Kane fired first without
provocation and that Acosta only acted after Kane fired at him. The jury considered this
testimony and apparently found it credible; we will not second-guess the assessment of
those who heard the evidence first-hand. 307 Kan. at 668.


                                               8
       Kane did not need to fire his pistol to rob the restaurant. The robbery was
accomplished before any shots were fired. But instead of leaving with the money, Acosta
testified that Kane stopped, turned, and fired his gun in Acosta's direction. Kane argues
he only meant to intimidate Acosta; he asserts that, had he intended to shoot Acosta, he
would not have shot several feet over Acosta's head from such a close range. But a juror
certainly could have come to a different conclusion: that Kane attempted to shoot Acosta
but missed under the turmoil of the moment. This sequence of events, viewed in the light
most favorable to the State, could cause a rational juror to conclude Kane decided to
shoot Acosta as he was leaving the restaurant.


       It is not the role of this court to reweigh the evidence or substitute our judgment
for the jurors' credibility determinations. Viewed in the light most favorable to the State,
there was sufficient evidence to support the jury's finding of premeditation. We therefore
affirm Kane's conviction for attempted first-degree murder.


   2. There was sufficient evidence to support Kane's kidnapping conviction.

       Kane was convicted of kidnapping as the crime is defined in K.S.A. 2018 Supp.
21-5408(a)(2): "the taking or confining of any person, accomplished by force, threat or
deception, with the intent to hold such person . . . to facilitate flight or the commission of
any crime." This statute differentiates between the offending act (a taking or confinement
accomplished by force) and its mens rea (the intent to hold such person to facilitate the
commission of any crime). Kane asserts there was no evidence that his movement of
Fernandez from the dumpster to inside the restaurant facilitated the robbery. Thus, he
claims, there was insufficient evidence of an essential element of the crime.


       The Kansas Supreme Court discussed this definition of kidnapping at length in
State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). In an effort to differentiate takings



                                              9
severe enough to constitute kidnapping from takings merely incidental to the underlying
crime, the Buggs court adopted a three-factor test for whether an action "facilitate[s]" the
commission of a crime under the kidnapping statute:


       "[I]f a taking or confinement is alleged to have been done to facilitate the commission of
       another crime, to be kidnapping the resulting movement or confinement:
            (a) Must not be slight, inconsequential and merely incidental to the other
               crime;
            (b) Must not be of the kind inherent in the nature of the other crime; and
            (c) Must have some significance independent of the other crime in that it
               makes the other crime substantially easier of commission or substantially
               lessens the risk of detection." 219 Kan. at 216.


All three of these factors must be proved. See 219 Kan. at 216.


       Buggs also explained that the distance a person is moved and the length of his or
her confinement are only incidental to the kidnapping analysis. 219 Kan. at 214. The
court opined the "removal of a rape victim from room to room within a dwelling solely
for the convenience and comfort of the rapist is not a kidnapping," but "the removal from
a public place to a place of seclusion is." 219 Kan. at 216. Similarly, the "forced direction
of a store clerk to cross the store to open a cash register is not a kidnapping; locking him
in a cooler to facilitate escape is." 219 Kan. at 216.


       As a preliminary matter, the State argues that Buggs is inconsistent with Kansas'
modern approach to statutory interpretation because it adds extra-statutory factors—that
the taking must not be "slight, inconsequential[,] and merely incidental"; must not be
"inherent in the nature" of the underlying crime; and must "make[] the other crime
substantially easier"—to what K.S.A. 2018 Supp. 21-5408(a)(2) requires the State to
prove. Kansas courts use a plain-language approach to statutory interpretation. This is
because "[t]he most fundamental rule of statutory construction is that the intent of the


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legislature governs." State v. Spencer Gifts, 304 Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016).
And "[r]eliance on the plain and unambiguous language of a statute is the best and only
safe rule for determining the intent of the creators of a written law." 304 Kan. 755, Syl. ¶
2. Thus, assuming the statute's language is constitutional, its plain language "trumps both
judicial decisions and the policies advocated by the parties." 304 Kan. 755, Syl. ¶ 2. In
other words, appellate courts cannot "speculate" or "read into the statute language not
readily found there." 304 Kan. 755, Syl. ¶ 3.


       This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We have no indication—other than
general maxims of statutory interpretation—that the Supreme Court would depart from
its previous position on the kidnapping statute, so Buggs is binding on our analysis. And
while we can appreciate the State's concern that the Buggs factors are not specifically
articulated in the kidnapping statute, we nevertheless note that in adopting this standard,
Buggs was not adding elements to the crime of kidnapping; it was interpreting what it
means to "facilitate" a crime under the kidnapping statute. We thus apply the Buggs
factors to determine whether there was sufficient evidence to support Kane's kidnapping
conviction.


       The State charged Kane with kidnapping for forcing Fernandez into the restaurant
at gunpoint in order to facilitate the commission of the robbery. Neither party contests
that a taking occurred. Nor is there any serious question that Kane's actions meet the first
two Buggs factors. Moving third parties during a robbery who the robber does not intend
to rob is not incidental to the robbery. See State v. Dupree, No. 88,186, 2003 WL
22831336, at *7 (Kan. App. 2003) (unpublished opinion) (moving children, who were not
targets of a robbery, to another room was not incidental to the robbery), rev. denied 277
Kan. 926 (2004). And forcibly moving a person is not an element of robbery, so taking



                                             11
Fernandez was not inherent to the commission of the crime. See K.S.A. 2018 Supp. 21-
5420.


        But the parties contest whether the evidence in this case meets the third Buggs
factor—the taking's independent significance. Kane argues that Fernandez's flight upon
entering the restaurant provided Kane with little benefit. While he acknowledges Buggs'
statement that removing a person from a public to a private location can substantially
lessen the risk of detection, he argues his actions toward Fernandez did not make the
robbery easier to commit, nor did it lessen the risk of detection. Instead, Kane asserts that
his actions are more analogous to Buggs' example of a robber directing a store clerk to
open a cash register.


        In contrast, the State asserts that Kane's actions toward Fernandez were not
necessarily required to succeed in helping complete the robbery; rather, it is sufficient
under Kansas law to show that the kidnapper's effort could have made the crime
substantially easier to commit. And the State also points out that forcing Fernandez back
into the store at gunpoint could provide several benefits—some potential and some
actually recognized here—to Kane's robbery. Caselaw supports this position.


        Kansas law provides numerous examples of how an uncompleted or failed taking
may satisfy the third factor in Buggs if it had the potential to make a crime substantially
easier to commit. For example, in State v. Jackson, 238 Kan. 793, 714 P.2d 1368 (1986),
the defendant attempted but failed to force the victim into his car trunk. In upholding an
aggravated kidnapping conviction, the court, in addressing the third Buggs factor,
reasoned: "Had [the defendant] succeeded in forcing the victim into the trunk, the
appellant would have substantially lessened the risk of detection." 238 Kan. at 803.
Similarly, in State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983), the court upheld a
kidnapping conviction where a woman escaped from the defendant's car after he forced
her inside. Noting the defendant moved the woman into his car, the court explained that


                                             12
the fact that she "kept fighting and screaming, and eventually was able to break away,
does not lessen the offense." 234 Kan. at 224. See State v. Weigel, 228 Kan. 194, 198-99,
612 P.2d 636 (1980) (during bank robbery, placing employees into bank vault but failing
to lock the vault was kidnapping because its purpose was to substantially lessen the risk
of detection); see also State v. Ferguson, Washington & Tucker, 228 Kan. 522, Syl. ¶ 5,
618 P.2d 1186 (1980) ("To be kidnapping . . . the taking of the victim does not have to be
essential to the accomplishment of the underlying crime but it is sufficient if the taking is
aimed at making it easier of accomplishment." [Emphasis added.]).


       These cases indicate that a court may find independent significance not only when
an act actually makes a crime substantially easier to commit but also when the act has the
potential to do so, even if the defendant never received the anticipated benefit. It is the
nature of the act, not its result, that is legally important. Thus, whether the taking here
would make the robbery substantially easier to commit or would substantially reduce the
risk of detection should be viewed from Kane's perspective when he forced Fernandez
into the restaurant at gunpoint—not with the benefit of hindsight, now knowing that
Fernandez was able to get away.


       Moving Fernandez from a public alley to inside the restaurant substantially
decreased the risk of detection; since the restaurant was closed, nobody would happen
upon Kane. That Fernandez escaped almost immediately upon reentering the restaurant
does not impact the significance of Kane's actions. Had Fernandez not escaped, Kane
likely would have continued to confine Fernandez inside, just as he did Guzman-
Mendoza and Trejos-Gonzales. By keeping them inside, Kane substantially decreased the
likelihood one of them would raise the alarm. And taking Fernandez could have made the
robbery substantially easier. Securing others' compliance by threatening Fernandez and
ensuring he did not interfere with the robbery are plausible methods by which Kane could
have made the robbery substantially easier to commit.



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      Viewed in the light most favorable to the State, there was sufficient evidence to
support Kane's kidnapping conviction.


      Affirmed.




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