State v. Vaughn

1

NOT DESIGNATED FOR PUBLICATION

No. 111,430

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

REGINALD VAUGHN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed January 29,
2016. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

Per Curiam: Reginald Vaughn appeals his convictions on seven counts of
kidnapping (K.S.A. 2015 Supp. 21-5408[a][2], [c][1]) and one count each of aggravated
robbery (K.S.A. 2015 Supp. 21-5420[b][1], [c][2] and K.S.A. 2015 Supp. 21-5420[b][1]),
attempted aggravated robbery (K.S.A. 2015 Supp. 21-5301[a], [c][1]), and aggravated
burglary (K.S.A. 2015 Supp. 21-5807[b], [c][3]). Vaughn challenges the sufficiency of
the evidence in support of the kidnapping convictions, the admission of evidence at trial,
and the jury instructions. Having carefully reviewed the parties' briefs and the record on
appeal, we find no reversible error and, therefore, affirm the convictions.
2

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of April 13, 2012, John Ringer, Patricia Merritt, and
Robert Dale were on the front porch of a Wichita residence. Randy Hula, Tony Hula,
John Krieger, and Cory Vanboening were sleeping in bedrooms of the residence. Ringer's
infant son was in the basement.

Vaughn and three other male accomplices approached the victims on the porch,
pointed two pistols at them, and ordered them to the ground. Ringer testified that he
could hear the intruders talking and "[t]hey thought that we should probably go inside, be
in the front room" because "[t]hey needed to get us under control." The accomplices
moved the victims at gunpoint from the porch into the living room.

The intruders ordered the three victims to sit in the living room, and one of them
detained the victims with a pistol. The other accomplices went throughout the house
armed with the other pistol, looking for electronic equipment and money. The intruders
eventually brought the four remaining adult victims into the living room.

The intruders switched off guarding the victims in the living room, passing back
and forth pistols as they assumed or relinquished guard duty. Randy Hula testified that
"after we were moved into the living room," Vaughn "was standing . . . with the black
gun . . . [a]nd he held us there, basically told us to be quiet. We are taking your stuff.
Don't move or I will shoot you."

Ringer told the intruders that his infant son was in the basement, and Merritt was
allowed to retrieve the child. Merritt was alone for a moment and she managed to call
911 before hearing some of the accomplices coming down the stairs. The men took some
money from Merritt's presence in a basement bedroom and led her back to the living
room.
3

One of the intruders left to get a car. Tony Hula testified the remaining men "were
asking me for trash bags so they could put my things in them, and they were moving
things and kind of piling it up so they could get it organized to move out of the house
when they had their car ready." Tony had a jar of marijuana in his room, and the
assailants took that as well.

While the home invasion was occurring, one of the intruders looked out the front
door and saw police approaching the house. Three intruders in the house, including
Vaughn, ran out the back door to escape.

Police officers believed Vaughn and another intruder were raising pistols in their
direction. The officers opened fire, seriously injuring Vaughn and killing an accomplice.
The intruder who had left for the car, Bradlee Ohle, was later captured in Salina.

Vaughn spent a few days in the hospital under police custody. During his
hospitalization, Vaughn made inculpatory statements which he unsuccessfully moved to
suppress as evidence before trial.

At trial, Vaughn testified on his own behalf. According to Vaughn, he and the
other intruders visited the house intending only to buy marijuana from Tony Hula and the
911 call was prompted by an altercation between his group and Hula. The jury returned
guilty verdicts on all the charges but aggravated assault of a law enforcement officer, on
which the jury was unable to unanimously agree. Vaughn appeals.

SUFFICIENCY OF THE EVIDENCE OF KIDNAPPING

Vaughn contends the evidence was insufficient to convict him of kidnapping
because the movement of the victims from their initial locations to the living room was
"inherent in the robbery" and did not facilitate the commission of the crime.
4

Our standard of review provides: "In determining whether the State has produced
sufficient evidence to sustain a conviction, this court reviews all the evidence in the light
most favorable to the prosecution and determines whether it is convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt." State v.
Bollinger, 302 Kan. 309, 313, 352 P.3d 1003 (2015).

The jury was instructed to decide for each of the kidnapping counts whether
Vaughn "took or confined" a victim "by force or threat" and whether Vaughn had done so
"with the intent to hold" the victim "to facilitate the commission of any crime." See
K.S.A. 2015 Supp. 21-5408(a)(2).

"If a taking or confining 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 a 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." State v. Burden, 275 Kan. 934,
943, 69 P.3d 1120 (2003).

Was There a Taking?

We first consider whether there was a taking of the victims to facilitate the crimes
of aggravated burglary, aggravated robbery, and attempted aggravated robbery. The four
intruders were faced with seven adult victims, six of whom were men. At least six of the
victims were in their 20s or early 30s, including the three on the front porch. The four
intruders had only two pistols (one being a .22 caliber firearm) between them and a
pocketknife.

The intruders, therefore, faced a control problem if they were to enter the house,
search for valuables, transport the valuables to their car, and make an escape from the
5

crime scene. Viewing the evidence in the light most favorable to the State, the intruders'
plan was to move the three victims from the porch to the interior of the house and then to
move the other victims to the same location. The intruders left one pistol with whomever
was guarding the victims, and they then carried the second pistol throughout the house to
search for additional victims.

When an intruder entered Tony Hula's bedroom armed with a knife, for example,
Hula offered resistance. This intruder called to another, to bring a "burner;" and upon
being faced with the pistol, Hula submitted. Considered in the light most favorable to the
State, the evidence was sufficient for a rational factfinder to conclude beyond a
reasonable doubt that the intruders, Vaughn included, took the victims with an intent to
hold them to facilitate both the aggravated burglary of the house and the aggravated
robbery of the individuals within it. See State v. Richmond, 258 Kan. 449, 453, 904 P.2d
974 (1995); State v. Holloman, 240 Kan. 589, 593-94, 731 P.2d 294 (1987).

In arguing against a taking, Vaughn cites State v. Kemp, 30 Kan. App. 2d 657, 46
P.3d 31, rev. denied 274 Kan. 1116 (2002). But in that case the victims were moved as a
"matter of convenience." 30 Kan. App. 2d at 660. Another case Vaughn cites, State v.
Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), gave a similar example that "[t]he
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."

In contrast, when the facts show "something more than just to make [the crime]
more convenient," i.e., something that makes "the commission of the crime 'easier' as, for
example, by lessening the risk of detection," then the facts establish facilitation. 219 Kan.
at 215. Such was the case here. A rational factfinder could conclude beyond a reasonable
doubt that Vaughn and the other intruders did not move the victims to the living room
merely for the sake of convenience, but to make the commission of their crimes
substantially easier.
6

In another argument, Vaughn contends the facilitation was only incidental: "It
was an effort to get everybody in the house to one central location to facilitate the
robbery. Such movement was incidental to the robbery and not sufficient to support the
kidnapping charges." But facilitation may not be incidental:

"In the light of our statute . . . we cannot agree that merely because a taking 'facilitates'
another crime it must necessarily be 'merely incidental' to the other crime. Whether a
taking substantially 'facilitates' another crime or whether it is 'merely incidental' are two
different things. The same taking cannot be both." Buggs, 219 Kan. at 215.

For the reasons already discussed, the movement here facilitated the crimes and thus was
not incidental.

Was There Confinement?

Next, assuming the evidence did not establish a taking, did the evidence establish
confinement—another aspect of the kidnapping instructions provided to the jury?
Importantly, under the instructions, the jury could convict Vaughn of kidnapping based
on evidence of either a taking or confinement. But Vaughn waives or abandons this issue
by failing to brief it. See State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). As a
result, his claim lacks merit. See Holloman, 240 Kan. at 594 (holding that while evidence
did not show a taking, it did show confinement by force or threat, thereby supporting
kidnapping).

Despite Vaughn's failure to argue the confinement aspect to the kidnapping
instructions, we are persuaded the evidence was also sufficient to establish confinement.
Since the victims were gathered together in one room, they could be guarded by one
intruder armed with a pistol. The accomplices were thus enabled to search the house
armed with the second pistol, collect the valuables, retrieve the car, and expect to make
their escape without detection by law enforcement authorities. See Richmond, 258 Kan.
7

at 453-54. The confinement of the victims, like the taking of the victims which preceded
it, facilitated the commission of the crimes.

Upon our review of the trial evidence in the light most favorable to the
prosecution, we hold there was sufficient evidence to convince a rational factfinder that
Vaughn was guilty beyond a reasonable doubt of seven counts of kidnapping.

ADMISSION OF INCRIMINATING STATEMENTS MADE AT THE HOSPITAL

For his second issue on appeal, Vaughn contends the trial court erred by not
suppressing several inculpatory statements he made at the hospital while recovering from
his injuries.

Preliminarily, Vaughn does not renew his suppression arguments made in the
district court based on state evidentiary law or the federal Health Insurance Portability
and Accountability Act, 42 U.S.C. § 1320d (2012) et seq. As a result, these arguments are
waived or abandoned. Llamas, 298 Kan. at 264. Instead, Vaughn reprises his
constitutional arguments raised in the district court based on custodial interrogation and
his right to privacy.

In considering whether incriminating statements should have been suppressed as
evidence, we adhere to the following standard of review:

"[A]n appellate court applies a dual standard when reviewing the trial court's decision on
a suppression question. First, the factual underpinnings of the decision are reviewed
under a substantial competent evidence standard. Next, the appellate court reviews the
trial court's legal conclusion drawn from those facts de novo. An appellate court does not
reweigh evidence, assess witness credibility, or resolve conflicting evidence. [Citation
omitted.]" State v. Gibson, 299 Kan. 207, 215-16, 322 P.3d 389 (2014).

8

Custodial Interrogation by Law Enforcement Officers

Later in the day, following Vaughn's arrest at the crime scene, Thomas G. Fatkin
and Timothy Relph, detectives with the Wichita Police Department, went to Vaughn's
hospital room. Detective Fatkin sat in a chair next to Vaughn's bed, but the room was
small and filled with medical equipment so Detective Relph remained at the foot of the
bed. Detective Relph testified that he heard little of the exchange between Vaughn and
Detective Fatkin and that he asked no questions of Vaughn.

There was no evidence that the detectives provided Vaughn with a warning in
accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). Still, Vaughn provided some biographical information, although he was unwilling
to say anything further to the detectives. Detective Fatkin testified that he gave Vaughn
his business card:

"Well, people change their mind sometimes, and I explained to him that I was
going to be the case detective on the case, and that if he so chooses, that he can contact
me. It has my phone number on it and my name and I wanted to make sure he knew who
I was. And that's really the only reason. If he wanted to talk to me at a later time, he could
call me."

Without further questioning, Vaughn then volunteered several statements:

 "'I stood at the front door. They said don't let anybody go outside.'"
 "'I didn't have nowhere [sic] to go.'"
 "'Somebody called me, said do you want to make a quick dollar.'"

Next, Vaughn reiterated that he did not wish to say anything further, and the detectives
left.

9

The following day, Detective Relph visited Vaughn's room. The detective testified
he was at the hospital to interview another defendant and his supervisor "wanted me to
check and see if Mr. Vaughn was scheduled for any kind of dismissal and make sure that
the paperwork was ready for him." The detective said he learned Vaughn might be
released from the hospital later that day, so he finalized the paperwork and took it to the
officer guarding Vaughn. Detective Relph testified:

"I could tell Mr. Vaughn was awake, and as I was talking to . . . the officer, I was
explaining that Mr. Vaughn and some other people had to be kept separate in the jail.
And at that point I showed him the paperwork and Mr. Vaughn was sitting up in bed. He
seemed to be kind of curious, so I just showed to him . . . the charges he was going to be
booked for. And at that point I told him, I reminded him the day before Detective Fatkin
had left a card and he could contact him if he had anything more to add to the case."

Detective Relph testified that Vaughn asked about Detective Fatkin and said,
"[W]hat if I want . . . to talk to him now?" According to Detective Relph, "I told him
Detective Fatkin was resting because he had spent most of the night traveling to Salina.
He was interviewing a codefendant named Brad, and I did mention that Brad,
incidentally, was throwing everybody under the bus." (Emphasis added.)

The detective said he told Vaughn, "I was also working the case." Vaughn asked,
"[C]an I talk to you then?" Detective Relph said yes and gathered some paper from the
officer to take notes. Before the detective could pose a question, however, Vaughn said,
"'Shit, look at their houses. They got pounds of dope and they are saying I'm in charge?'"
Vaughn then stated, "'Please look at them and then look at me and see who should be
thrown under a bus.'"

The detective testified he decided to give Vaughn the Miranda warning, but before
he finished, Vaughn interjected, "'Are we cool then? I don't want to say anything right
10

now.'" This stopped the detective from continuing with the Miranda warning, but Vaughn
continued talking, making several incriminating statements:

 "'All I did was stand in the doorway.'"
 "'The police thought I had a gun, but that was a big knife case that they took off
the wall.'"
 "'You show me a document where they throw me under the bus and I will tell
you every fact.'"
 "'Listen, Brad, I trusted him until he took my shoes. They was [sic] the ones that
run [sic] up on the house. They told me to stand next to the door. Then I ran out
the back."
 "'You want to get technical, Brad had a baby 9. The other dude had a black and
brown gun.'"
 "'I bet they didn't say that.'"

Prior to trial, Vaughn moved to suppress these statements because he alleged that
he was subjected to custodial interrogation after invoking his right to remain silent. In
denying the motion to suppress evidence, the district court found, however, that Vaughn's
statements "were not the result of any questions directed to him by law enforcement."
The district court specifically found Vaughn's statements to Detective Relph were
"voluntary" and were not given under "custodial interrogation."

On appeal, Vaughn does not address any issues related to the giving of Miranda
warnings. Instead, he contends both detectives violated his rights under the Fourth
Amendment to the United States Constitution by interrogating him after he had invoked
his right to silence. Vaughn argues Detective Fatkin conducted an interrogation when the
detective "handed him his business card in case he 'changed his mind' about talking."
With regard to Detective Relph, Vaughn argues he conducted an interrogation when he
"approached Vaughn [and] stated that he was being 'thrown under the bus.'"

11

In response, the State contends Detective Fatkin did not interrogate Vaughn by
handing him a business card, but the State does not directly deny that Detective Relph
initiated an interrogation. The State maintains in the latter instance only that Vaughn was
willing "to talk . . . before [Detective] Relph's comment was ever even made."

In evaluating the constitutional propriety of a custodial interrogation by law
enforcement officers, we are guided by the following precedent:

"The rules governing an accused's constitutional rights during a custodial
interrogation are well established: 'The Fifth Amendment to the United States
Constitution guarantees the right against self-incrimination, including the right to have a
lawyer present during custodial interrogation and the right to remain silent.' State v.
Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda, 384 U.S. at 479).
Moreover, in Kansas, '[n]o person shall be a witness against himself [or herself].' Kan.
Const. Bill of Rights, § 10. '[A] suspect's invocation of his or her right to remain silent
must be scrupulously honored and cuts off further interrogation elicited by express
questioning or its functional equivalent.' State v. Scott, 286 Kan. 54, 69-70, 183 P.3d 801
(2008) (citing State v. Carty, 231 Kan. 282, 286, 644 P.2d 407 [1982])." State v. Aguirre,
301 Kan. 950, 954, 349 P.3d 1245 (2015).

Vaughn does not allege he was expressly questioned, but he complains that he was
subjected to the functional equivalent of express questioning after he invoked his right to
remain silent. The functional equivalent of express questioning includes

"'any words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.' Rhode Island v. Innis, 446 U.S. 291, 300-01, 64
L. Ed. 2d 297, 100 S. Ct. 1682 (1980); see State v. Woolverton, 284 Kan. 59, 70-71, 159
P.3d 985 (2007) (Miranda warnings required for all custodial interrogations). The test of
whether the officers should know their words or actions are reasonably likely to elicit an
incriminating response, so as to amount to the functional equivalent of interrogation, is an
objective one. Even so, the officers' intent is not necessarily irrelevant. Innis, 446 U.S. at
12

301-02 n.7; see also United States v. Cooper, 19 F.3d 1154, 1162 (7th Cir.1994) ('Where
an objective observer would believe that the encounter was reasonably likely to elicit an
incriminating response from the defendant, the court will find that the encounter
constituted the "functional equivalent" of interrogation.')." State v. Warledo, 286 Kan.
927, 935-36, 190 P.3d 937 (2008).

We will first consider whether Detective Fatkin's handing of his business card to
Vaughn was the functional equivalent of questioning.

At the outset, Vaughn does not cite a case where a law enforcement officer
handing a business card to a suspect with an invitation to speak in the future was
considered the functional equivalent of express questioning. Vaughn does cite State v.
Hebert, 277 Kan. 61, 67, 82 P.3d 470 (2004), where an officer told a defendant:

"'I've only heard one side of the story and, obviously, there's always two sides of a story
here and I'd like in your words, your input and tell me what happened and explain in your
words and coming from you. Would you like the opportunity to tell me your side of the
story?'"

Hebert is distinguishable, however, because it featured an actual question—the
officer asked the defendant if he would like to give information at that time. In the
present case, Detective Fatkin offered Vaughn a chance to talk with him at some time in
the future. Since Detective Fatkin was opening a channel for future communication with
Vaughn rather than soliciting an answer from him at that time, Detective Fatkin's
communication does not exhibit the qualities of the functional equivalent of express
questioning.

We find support for the conclusion that Detective Fatkin's communication was not
the functional equivalent of questioning in United States v. Comosona, 848 F.2d 1110,
1112-13 (10th Cir. 1988). In Comosona, the United States Court of Appeals for the Tenth
13

Circuit held a defendant was not interrogated when an agent handed him a business card
and invited him "to call him collect if he wished to speak further about the incident." 848
F.2d at 1112. The federal court believed that "characterizing such a practice as
'interrogation' would unduly hamper law enforcement officials in the routine aspects of
their criminal investigations." 848 F.2d at 1113. We agree. We do not find error in
admitting statements that Vaughn volunteered after Detective Fatkin handed him his
business card and mentioned that he could contact the officer at a later time if he wanted
to speak to him.

Next, we consider whether Detective Relph's statement to Vaughn that a
codefendant "was throwing everybody under the bus" was the functional equivalent of
questioning.

As a general proposition, advising a defendant that he or she has been implicated
by a codefendant (or another witness) can be the functional equivalent of express
questioning. See State v. Montes, 136 Ariz. 491, 493-95, 667 P.2d 191 (1983); Phillips v.
State, 285 Ga. 213, 216, 675 S.E.2d 1 (2009); 2 LaFave, Israel, King & Kerr, Criminal
Procedure § 6.7(c), p. 781 n.111 (3d ed. 2007). But Vaughn's citation to Hebert is again
distinguishable because, unlike the present facts, Hebert featured an actual question by an
officer to a defendant.

Considering the facts of the present case, we are persuaded that Detective Relph
engaged in the functional equivalent of express questioning. The detective spoke to
Vaughn on a matter of interest—the criminal charges Vaughn would be facing—and
reminded Vaughn that he could talk to Detective Fatkin. When Vaughn asked about
Detective Fatkin, Detective Relph spontaneously volunteered that Vaughn's codefendant
had implicated other intruders during his interview with Detective Fatkin. The detective
testified to doing so incidentally, but in context there was a design to elicit a response.
14

Vaughn, therefore, was subjected to custodial interrogation after invoking his right to
remain silent.

The State counters that Detective Relph made the statement only after Vaughn
asked "what if I want to talk to him now," meaning Detective Fatkin. We could be
persuaded by the State's argument if Vaughn had thereby waived his right to remain
silent. See State v. Mattox, 280 Kan. 473, 481, 124 P.3d 6 (2005), cert. denied 547 U.S.
1197 (2006). But the State does not argue waiver and, as a consequence, abandons that
point on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).

Vaughn's question about talking to Detective Fatkin also does not meet the
standard for waiver. A valid waiver occurs only when a defendant initiates further
discussions with the police and knowingly and intelligently waives the previously
asserted right. See Mattox, 280 Kan. at 481. Vaughn was asking about incidents of the
custodial relationship, i.e., how to speak with Detective Fatkin, rather than articulating a
willingness and desire to discuss the investigation. See 280 Kan. at 481. We conclude
that the admission of Vaughn's incriminating statements made immediately after
Detective Relph's "throwing everybody under the bus" comment was error.

Incriminating Statements Made to Medical Providers

Vaughn also complains about the admission into evidence of several incriminating
statements he made to medical providers which were overheard by law enforcement
officers.

Stephen Schmitt, a Wichita police officer, guarded Vaughn at the hospital. Officer
Schmitt heard Vaughn tell a medical provider:


15

 "'I never meant for anyone to get hurt. I just wanted the money and go.'"
 "'I was never going to shoot anybody. I was just holding the gun. The safety was
on.'"
 "'The guy who shot me, shot me right, because it made me drop the gun. I tried to
run, but just hit the ground.'"
 "'We were making money in a bad way.'"

Glenn Ludwig, a Wichita police officer, relieved Officer Schmitt. Officer Ludwig
testified that Vaughn asked him: "'Did you guys catch the driver of the car?'" On appeal,
Vaughn groups this statement with others he made to medical providers, but it is clear
from the transcript that Vaughn asked the question directly to the officer.

Officer Ludwig also testified to statements that Vaughn made to medical
providers. The officer said Vaughn told one: "I know that was stupid." The officer said
that Vaughn responded to another's question by mentioning the "backyard," and that "he
heard two pops and his arm went dead." Officer Ludwig also recounted what he heard
from Vaughn:

"And then all of a sudden he just stated that there being kids in the house and he had the
gun, he wasn't going to let anything happen to them. He said that the cops came and they
ran out the back, heard two pops and he couldn't feel his arm."

Finally, Officer Ludwig testified Vaughn told a medical provider that "all he
wanted to do was go get the weed and get out."

In the district court, Vaughn moved to suppress these statements on the basis that
their admission at trial violated his constitutional right to privacy. The district court
denied suppression reasoning that "it's hard for the Court to fathom the defendant had any
realistic or constitutionally protected expectation of privacy. Everything he said was
subject to being heard by a lot of people in that room, particularly the police officer."
16

On appeal, Vaughn argues for a "constitutional right to privacy as it relates to
confidential medical information." Preliminarily, we first distinguish Vaughn's question
to Officer Ludwig regarding the identity of the accomplice who drove from the crime
scene. Since Vaughn does not challenge the admission of this statement with pertinent
argument, he waives or abandons the challenge on appeal. See State v. Tague, 296 Kan.
993, 1001, 298 P.3d 273 (2013).

With regard to statements made to the medical providers and overheard by the
officers, our first question is the nature of the state action. See 2 LaFave, Israel, King &
Kerr, Criminal Procedure § 6.10(b), p. 872 ("state action is a prerequisite to application
of constitutional protections"). Vaughn identifies the state action: "By placing a guard in
his room and then admitting at trial the statements Vaughn made to his medical
providers, the State effectively eliminated Vaughn's right to privacy."

Since Vaughn was in police custody at the hospital, the State did not violate his
constitutional rights by placing officers in his room. See State v. Wagner, 39 Kan. App.
2d 279, 286, 179 P.3d 1149 (2008). As a general rule, because the officers had a right to
be where they were, Vaughn's volunteered inculpatory statements made while in the
officers' hearing were admissible at trial. See United States v. Yamba, 506 F.3d 251, 256-
57 (3d Cir. 2007); United States v. Ceballos, 385 F.3d 1120, 1124 (7th Cir. 2004).

Under the circumstances, Vaughn must show a legitimate expectation of privacy
in order to invoke constitutional protection. See Aid for Women v. Foulston, 441 F.3d
1101, 1116-17 (10th Cir. 2006). A defendant does not have a legitimate expectation of
privacy in statements readily audible to law enforcement officers. See Bassik v. Scully,
588 F. Supp. 895, 902 (E.D.N.Y. 1984) (defendant made statements to his brother
knowing detectives were in the room); State v. Savage, 575 So. 2d 478, 491-92 (La. App.
1991) (defendant spoke loudly in the jail with his mother). Vaughn even acknowledges
that his privacy rights are not absolute and required a weighing of interests, such as the
17

State's compelling interest in prosecuting crimes. See Alpha Med. Clinic v. Anderson, 280
Kan. 903, 921, 128 P.3d 364 (2006).

Vaughn asserts that it was essential for him to communicate with medical
personnel despite the continual presence of police officers in his hospital room. He claims
the "alternative would have been . . . to refuse to communicate with his medical
providers, putting his health at risk." But none of Vaughn's statements, other than about
the loss of feeling in his arm, appear to have been related to his health, and that statement
was not inculpatory. Even if Vaughn had constitutional privacy rights in his statements to
medical providers, the challenged statements were unrelated to his medical care and
treatment, and he does not show his inculpatory statements outweighed the State's interest
in prosecuting the crimes.

Consistent with our analysis, Vaughn does not cite any authority supporting
suppression on the ground of a constitutional right to privacy. Vaughn cites A.L.A. v.
West Valley City, 26 F.3d 989 (10th Cir. 1994), which was a civil rights case against a
city and several of its police officers for an officer's false statement to the plaintiff's
family that the plaintiff had HIV. The issue in that case, however, was not suppression of
evidence but whether the plaintiff showed an injury in fact. The only statement of law in
A.L.A. which relates to the present case provides: "There is no dispute that confidential
medical information is entitled to constitutional privacy protection." 26 F.3d at 990. This
legal point related to the basis for the federal civil rights claim.

A.L.A. is clearly not on point. But even if the just-quoted statement of law did
apply here, Vaughn assumes Officers Schmitt and Ludwig overheard confidential
medical information. On the contrary, Vaughn's statements at the hospital generally bore
on his guilt, not on his medical condition or treatment. The officers' overhearing of
Vaughn's statements would, therefore, not trigger the same sort of constitutional
18

considerations. And assuming they did, the weighing of interests already discussed would
tip towards admission as evidence at trial.

Next, Vaughn cites State v. George, 223 Kan. 507, 575 P.2d 511 (1978), a
prosecution for driving under the influence of intoxicating liquor. In that case, our
Supreme Court allowed testimony from officers who conducted and observed dexterity
tests witnessed by a doctor because "it was not a confidential communication between
patient and physician." 223 Kan. at 511. Our Supreme Court only excluded the doctor's
own mental impressions formed after an entirely visual, nonverbal examination. See 223
Kan. at 511-13.

George did not relate to a constitutional right to privacy. George also concerned
testimony by a medical provider, which was not at issue here. Finally, even if George
applied to the present case, Vaughn's statements in the hospital were more like the
dexterity tests observed by the officers in George, which were not confidential, than they
were like the mental impressions of the doctor, which were confidential.

Having reviewed Vaughn's incriminating statements made to medical personnel
and overheard by law enforcement officers, we are convinced that no constitutional
privacy rights were violated by their admission in evidence. The district court did not err.

Prejudice Due to the Erroneous Admission of Evidence at Trial

Vaughn argues he was prejudiced by admission of his statements at the hospital
because they "directly" contradicted his trial testimony. Vaughn maintains the jury
credited his statements at the hospital rather than his trial testimony. Given Vaughn's
constitutional arguments, the State must prove beyond a reasonable doubt that any error
did not affect the outcome in light of the entire record. See State v. Santos-Vega, 299
Kan. 11, 24, 321 P.3d 1 (2014).
19

We have found error only in the admission of statements made by Vaughn after
Detective Relph's "Brad, incidentally, was throwing everybody under the bus" statement.

Were these statements prejudicial? Vaughn referenced houses with pounds of dope
and questioned whether, in comparison, he "'should be thrown under the bus'" rather than
"'them.'" Interestingly, Vaughn's defense was that at the time of the incident he and his
group were merely attempting to purchase marijuana from Tony Hula. Vaughn's remark
was not necessarily incriminating with regard to the charged offenses, but it could be
understood to support his defense.

For example, Vaughn also told a medical provider that he wanted to "'go get the
weed and get out.'" Although on appeal Vaughn argues this statement was inadmissible,
after Officer Ludwig testified to this statement at trial, Vaughn's counsel asked Officer
Ludwig to repeat it during cross-examination. Vaughn then testified on his own behalf
that the incident was a drug buy which had escalated into a dispute, not a burglary and
robbery. Vaughn's counsel also argued the point in closing argument. Given these
circumstances, we are not convinced that Vaughn's references to houses containing
pounds of dope were prejudicial. On the contrary, these circumstances plausibly
supported his defense.

Other inadmissible statements that Vaughn made placed him at the scene, standing
by the doorway of the home, running out the back of the house, carrying a knife case, and
acknowledging that two of the men in his group were armed with handguns. This
information contained in Vaughn's statements was not especially prejudicial for two
reasons. First, given Vaughn's defense and his testimony in support of that defense, the
information which placed him at the scene and running out of the house was not
necessarily incriminating. Second, all of the information Vaughn provided to Detective
Relph was almost undisputed given the testimony of the victims, law enforcement
20

officers who apprehended Vaughn at the scene, and the other statements that Vaughn
made at the hospital which we have determined were appropriately admitted in evidence.
Moreover, setting aside the inadmissible statements, the evidence of Vaughn's
guilt was substantial. The several victims offered testimony that was both consistent
among them and entirely in conflict with Vaughn's version of events. The same is true for
officers who approached the house during the commission of the crimes. They testified to
seeing intruders in the living room or at the front door, which supported the victims'
testimony and contradicted Vaughn's account that he and the other intruders had entered
the back door and remained in the kitchen while conducting the purported drug buy from
Tony Hula.

Further supporting the victims' testimony was their dress and location when the
police entered. Those who testified to being on the porch were fully dressed, and those
who testified to being asleep were in their underwear, yet all were together in the living
room. Tony Hula, for example, was in his underwear when the police entered, and he
testified he would not have met with the intruders, as Vaughn had testified, without being
fully dressed.

Considered in light of the entire record, the erroneous admission of statements
Vaughn made at the hospital to Detective Relph did not affect the outcome of the trial
beyond a reasonable doubt. The State's evidence was direct, extensive, and compelling.

KIDNAPPING JURY INSTRUCTION

Vaughn does not contend the kidnapping jury instruction, which followed the
Pattern Instructions for Kansas, was erroneous. See PIK Crim. 4th 54.210. Instead, he
argues the trial court should have added a statement of law from State v. Buggs, 219 Kan.
203, 216, 547 P.2d 720 (1976), to the approved PIK language relating to kidnapping.

21



In reviewing this issue, we apply a four-step analysis:

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer,
295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

With regard to the first step, Vaughn requested the additional language to the
kidnapping instruction, so the issue was preserved, and neither party questions our
jurisdiction.

Next, we consider the second step, and ask: Was the requested instruction legally
appropriate? As already suggested, the issue is not whether the PIK language was legally
appropriate. The issue is also not whether the Buggs language was legally appropriate.
Rather, the issue is whether the instruction Vaughn actually requested, i.e., the PIK
language plus the Buggs language, was legally appropriate. See State v. Williams, 295
Kan. 506, 518, 286 P.3d 195 (2012) ("the district court errs if it refuses to give a
requested instruction that is legally appropriate and factually supported by some
evidence," citing Plummer, 295 Kan. at 162).

22

With the particular count and victim's name deleted, the kidnapping instructions
advised the jury:

"[T]he defendant is charged with Kidnapping. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant took or confined [the victim] by force or threat.
"2. The defendant did so with the intent to hold [the victim] to facilitate the
commission of any crime.
"3. This act occurred on or about the 13th day of April, 2012, in Sedgwick
County, Kansas."

Vaughn, however, requested the addition of the following language:

"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.
"For example: A standstill robbery on the street is not a kidnapping; the forced removal
of the victim to a dark alley for robbery is. 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; the removal from a public place to a place of seclusion is. 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. The list is not meant to be exhaustive, and
may be subject to some qualification when actual cases arise; it nevertheless is illustrative
of our holding.
"State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976)."

Vaughn's requested additional language was a direct quote from Buggs, 219 Kan.
at 216. After considering the matter, the trial judge advised Vaughn's counsel that while
he was free to argue the Buggs language in closing argument, the text was not well suited
23

for a jury instruction. The trial judge reasoned: "I think it would be unduly burdensome,
and while [a]ppellate decisions are accurate statements of the law, they aren't always
couched in terms that are clear and concise and would follow the intent of PIK, to reduce
legal terms into simple language that jurors can understand."

We agree with the trial court. In State v. McKessor, 246 Kan. 1, 11, 785 P.2d 1332
(1990), a defendant similarly argued a trial court erred by failing to give the PIK
instruction with the additional Buggs language. Our Supreme Court did not find error:
"In State v. Nelson, 223 Kan. 572, 573-74, 575 P.2d 547 (1978), this court approved the
use of the pattern instruction under similar circumstances. The policy question for this
court is whether our holding in Nelson should be overruled. This we decline to do."
McKessor, 246 Kan. at 11.

We understand McKessor as support for a trial court's decision to choose plain,
understandable language to inform the jury regarding the law rather than a more
expansive, detailed, and complex exposition of the law. In this way, McKessor is clearly
consonant with the purpose of the pattern instructions: "The pattern instructions have
been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity
to jury instructions." State v. Pioletti, 246 Kan. 49, 58, 785 P.2d 963 (1990). For this
reason, it is well settled that district courts should generally follow the PIK language. See
State v. Cox, 297 Kan. 648, 662, 304 P.3d 327 (2013); State v. Torres, 294 Kan. 135, 147,
273 P.3d 729 (2012).

With regard to the third step of analysis, the State concedes the Buggs language
was factually appropriate. But for the reasons already stated, the district court did not err
by providing the jury with the standard PIK instruction without the additional language
from Buggs.


24



AGGRAVATED ROBBERY JURY INSTRUCTION

This instructional issue relates to Count 8, the aggravated robbery of Merritt. The
trial court instructed the jury to decide whether Vaughn "knowingly took property from
the presence of Patricia Merritt . . . by force or threat of bodily harm to Patricia Merritt"
while "armed with a dangerous weapon." Vaughn's counsel, however, asked for an
instruction on attempted aggravated robbery because the crime "was foiled by the law
enforcement officers that arrived" and so was not "consummated to [its] conclusion."

The trial judge denied Vaughn's request:

"[O]nce the property is taken from the presence of another or from that person, the act of
robbery is completed, despite the later interception or apprehension by police. And in
fact, at least three individuals made it into the back yard. So I don't see the need to
instruct on the attempted aggravated robbery of Patricia Merritt. The evidence is that
once the property was taken, that crime is completed and the Court has no duty to instruct
on attempted."

Employing the same standard of review as before with regard to reviewability, the
parties agree that Vaughn raised this issue below. As to the second step, Vaughn argues
the instruction was legally appropriate because an attempt is a lesser included offense of
the charged crime. See State v. Weber, 297 Kan. 805, Syl. ¶ 4, 304 P.3d 1262 (2013). We
agree. See State v. Tolliver, No. 111,684, 2015 WL 1636846, at *4 (Kan. App. 2015)
(unpublished opinion) ("it is clear that giving an attempt instruction in this case was
legally appropriate because attempted aggravated sexual battery is a lesser included
offense of aggravated sexual battery").

25

The crux of the issue is the third step in the analysis, whether the attempt
instruction was factually appropriate. Merritt testified that while she was in the basement
calling 911, she heard someone running down the stairs. She ended the phone call and hid
the phone. One of the intruders turned on a light, waking Ringer's infant son. Merritt
picked up the boy and sat on a bed. The room in question was Merritt's bedroom, and the
money included Ringer's tips earned from bartending. Ringer did not live at the
residence, but he stayed with Merritt some nights.

Merritt testified the intruder "was just kind of glancing around the room and we
had some money sitting on the computer desk. He picked that up." Ringer testified that he
had placed $120 on the desk that night after arriving from work. Merritt testified that
along with Ringer's tip money, "I had a couple dollars sitting there . . . and I think there
was a roll of quarters sitting there too." There was evidence the intruders took money
from elsewhere in the house, and police recovered $164 in small bills and a roll of
quarters from one intruder's clothing and from the backyard where the intruders fell. In
closing arguments the State identified the bills and the roll of quarters as property taken
from the presence of Merritt.

"Even if an instruction is legally appropriate, the instruction is only required when
'"there is some evidence which would reasonably justify a conviction of [the lesser
included offense.]"'" State v. Brown, 300 Kan. 565, 585, 331 P.3d 797 (2014) (quoting
Plummer, 295 Kan. at 161 [quoting K.S.A. 22-3414(3)])." The evidence is viewed in the
light most favorable to the defendant. Brown, 300 Kan. at 585-86. Considered in the light
most favorable to Vaughn, the evidence did not support an attempt instruction.

"The crime of robbery is complete when the individual takes possession of the
property, because asportation is no longer required to complete the crime." State v.
Edwards, 299 Kan. 1008, 1015, 327 P.3d 469 (2014). The intruders in the present case
took possession of the money because they exercised complete, independent, and
26

absolute control over it, adverse to the rights of Merritt. See Brown, 300 Kan. at 557.
Vaughn points out that he and the other intruders were still gathering property when the
police arrived, but they had finished gathering the property in question here. Vaughn
points out they were unable to leave the scene with the property because the police
intervened, but the intruders had left the presence of Merritt, the room she was in, and the
house itself. Merritt also did not resist, which would have prolonged the robbery, as in the
case Vaughn cites. See State v. Randle, 32 Kan. App. 2d 291, 293, 81 P.3d 1254, rev.
denied 277 Kan. 927 (2004). We are persuaded that the trial court properly refused to
give the attempted aggravated robbery instruction.

OVERBREADTH OF AGGRAVATED ROBBERY AND ATTEMPTED AGGRAVATED ROBBERY
INSTRUCTIONS

The next instructional issue raised by Vaughn relates to Count 8, the aggravated
robbery of Merritt, and Count 9, the attempted aggravated robbery against unspecified
victim(s). Vaughn contends both jury instructions were broader than the crimes as alleged
in the charging document. The State denies the error but also argues in the alternative that
if there was error it was harmless.

In the charging document, Count 8 described the property Vaughn took as: "to-
wit: approximate[ly] $108.00 in cash." The trial court's proposed instruction relating to
this count dropped the to-wit clause and identified the property Vaughn took simply as
"property." Vaughn objected at the instructions conference and asked the trial court to
reinsert the to-wit clause.

In the charging document, Count 9 described the overt act Vaughn committed as:
"to-wit: put the items in a trash bag in the living room." The trial court's proposed
instruction dropped the to-wit clause and identified the overt act simply as "overt act."
27

Vaughn again objected and asked the trial court to follow the language in the charging
document.


The trial judge denied both requests:

"Well, number 1, the law just requires that property be taken from the person or
the presence of the person by force or threat. With regard to the $108 and then the . . .
attempted aggravated robbery, there[ were] seven people . . . . There [were] numerous
items of electronics. There was a TV removed from one bedroom out to the game table in
the basement. Those are the overt acts . . . . [A]gain, the instructions are to conform to the
evidence that the jury has heard. While there is a charging document that is mere
allegations, what has been presented to the jury and what they can consider as evidence is
that the property of any of these seven individuals was taken by force or threat and armed
with a dangerous weapon.
"I don't think the State is limited to $108. There [was] evidence that cash was
taken. There was evidence that the glass jar of marijuana was taken. The attempted
robbery is what the defense was put on notice in the Information was the assembly of
items in the living room. There [was] the TV in the basement, but I think the defendant is
aware of what the overt acts are and the State is allowed to argue in a general sense to
conform to their theory . . . to the evidence presented to the jury."

On appeal, Vaughn argues that since the jury "instructions were broader than the
charge[s] actually brought against" him, his "due process rights were violated." Vaughn
identifies the due process violation as "[a] conviction that rests on something that has not
been charged," citing in support Cole v. Arkansas, 333 U.S. 196, 197-02, 68 S. Ct. 514,
92 L. Ed. 644 (1948). Our standard of review is the same as in the prior two issues.

With regard to whether this issue is reviewable, the parties agree that Vaughn
raised the issue in the district court. Next, we consider whether the instructions were
legally appropriate.
28


The charging document identified the elements in question—property and an overt
act—and specified the facts which satisfied those elements—$108 in cash and putting
items in trash bags in the living room, respectively. Removing the factual specifications
in the instructions broadened the charges by leaving open the possibility that other facts
could satisfy the elements. As Vaughn complains, the "instructions . . . allowed for a
conviction based on other evidence." Vaughn's argument is buttressed by the trial court's
ruling that because other facts at trial would support the elements, the instructions should
be broader than the charging document.

Before discussing the cases Vaughn cites, it is important to set out the legal
framework:

"A jury instruction on the elements of a crime that is broader than the complaint
charging the crime is erroneous. The reason for this is because the charging instrument
sets out the specific offense alleged to inform the defendant of the nature of the
accusation, to permit the development of a defense to meet that accusation, and to protect
against conviction based on facts not contemplated in the accusation. Accordingly, the
State is bound by the wording of its charging document, and the prosecution and district
court must use caution in conforming the jury instructions to the charges."
"Generally, if a jury instruction on the elements of a crime adds alternate
statutory elements that were not contained within the language of the complaint or
information charging the defendant with the crime, the instruction is overly broad and,
thus, erroneous." State v. McClelland, 301 Kan. 815, Syl. ¶¶ 4-5, 347 P.3d 211 (2015).

Since Vaughn is arguing a due process violation under the federal Constitution, we
rely on a federal case with similar facts. In United States v. D'Amelio, 683 F.3d 412, 414
(2d Cir. 2012), a defendant was charged with using interstate commerce, "to wit . . . a
computer and the Internet," while attempting to persuade, induce, or entice a minor to
29

engage in sexual activity. The government later produced evidence that the defendant had
also used a telephone.



The trial court instructed the jury:

"'The third element the government must prove beyond a reasonable doubt is that
the defendant used a facility or means of interstate commerce in order to attempt to
persuade, induce, or entice the person he believed to be a minor to engage in sexual
activity. Both the telephone and the internet qualify as facilities or means of interstate
commerce. Therefore, you must determine whether the government has proven beyond a
reasonable doubt that a communication that constitutes an attempt to persuade, induce, or
entice a person to commit a sexual act, was actually transmitted by means of a telephone,
or the internet, or both.'" 683 F.3d at 415.

On appeal of the instruction, the United States Court of Appeals for the Second
Circuit noted the result would depend "on whether the circumstances here demonstrate a
constructive amendment of the indictment or a mere variance in proof." 683 F.3d at 416.

"To prevail on a constructive amendment claim, a defendant must demonstrate
that 'the terms of the indictment are in effect altered by the presentation of evidence and
jury instructions which so modify essential elements of the offense charged that there is a
substantial likelihood that the defendant may have been convicted of an offense other
than that charged in the indictment.' United States v. Mollica, 849 F.2d 723, 729 (2d Cir.
1988) (internal quotation marks omitted) (emphasis added). In United States v. Resendiz-
Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007), the Supreme Court
restated the 'two constitutional requirements for an indictment: "first, [that it] contains
the elements of the offense charged and fairly informs a defendant of the charge against
which he must defend, and, second, [that it] enables him to plead an acquittal or
conviction in bar of future prosecutions for the same offense."' Id. at 108, 127 S. Ct. 782
30

(quoting Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L. Ed. 2d 590
(1974) (alteration in original)). . . .
"By contrast, '[a] variance occurs when the charging terms of the indictment are
left unaltered, but the evidence at trial proves facts materially different from those alleged
in the indictment.' United States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003) (internal
quotation marks omitted)." 683 F.3d at 416-17.

An authority on federal law summarizes the importance of the constructive
amendment/variance distinction as follows:

"If the matter is considered merely a variance, it is reversible error only if it affected the
defendant's substantial rights; in other words, the defendant must prove prejudice to get
relief. The defendant would have to show, for example, that his substantial rights were
affected because he could not have anticipated from the indictment what evidence would
be presented at trial or that the conviction would not bar a subsequent prosecution.
Although courts sometimes find variances to be prejudicial and therefore reverse the
conviction, more often courts conclude that the variance does not prejudice the defendant
and do not find reversible error.
"In contrast, a constructive amendment involves a difference between the
pleading and proof so great that it essentially changes the charge. A constructive
amendment requires relief without proof of prejudice when the objection is timely
raised." 3 Wright & Welling, Federal Practice and Procedure: Criminal 4th § 516, pp.
46-49 (2011).

We note that our Supreme Court has recognized the possibility of "constructive
amendment through the jury instruction." State v. Tapia, 295 Kan. 978, 993, 287 P.3d
879 (2012).

Turning now to the arguments presented on appeal, Vaughn contends the
instructions for Counts 8 and 9 provided "multiple avenues" for conviction. He cites State
v. Trautloff, 289 Kan. 793, 801, 217 P.3d 15 (2009), where the charging document
alleged a defendant promoted the performance of sexually explicit conduct by a child
31

when he "'displayed'" a picture of the child. Later, the jury was instructed to decide
whether the defendant promoted the performance by "'procuring, selling, providing,
lending, mailing, delivering, transferring, transmitting, distributing, circulating,
disseminating, presenting, producing, directing, manufacturing, issuing, publishing,
displaying, exhibiting or advertising.'" 289 Kan. at 801-02.

Our Supreme Court reversed:

"The broad instruction allowed the jury to convict Trautloff of displaying or
procuring or producing a photograph that included sexually explicit conduct by a child
under 14 years of age. It did not compel the jury to find that Trautloff displayed a picture,
as alleged in the complaint. As previously described, the evidence of 'procuring' or
'producing' a photograph was direct and overwhelming, while the evidence that Trautloff
'displayed' a photograph or video was minimal and circumstantial. Although Trautloff did
not object to the instruction at trial, the instruction was clearly erroneous because we
cannot be confident that the jury convicted him only on the basis of the single alternative
theory charged and instructed upon. There exists a real possibility that the jury would
have rendered a different verdict if the district court had instructed only as to displaying."
289 Kan. at 803.

The jury instruction in Trautloff had "followed the broad language of the statute."
289 Kan. at 801. Here, in contrast, the statutes provided only one way of satisfying the
element in question. See K.S.A. 2015 Supp. 21-5420(a) ("taking property"); K.S.A. 2015
Supp. 21-5301(a) ("any overt act"). The "multiple avenues" Vaughn complains of in the
present case were, at most, different facts which could support the element.

Thus, the present case is more like D'Amelio than Trautloff, and the facts in
D'Amelio showed only a variance, not a constructive amendment:

"The government's proof at trial did not modify an 'essential element' of the
alleged crime. The essential element at issue is D'Amelio's use of a 'facility or means of
32

interstate . . . commerce,' 18 U.S.C. § 2422(b), not the particular means that were used.
Neither the indictment nor proof at trial showed that D'Amelio committed this crime by
means of, for example, use of force, which would have modified an 'essential element' of
the crime. Whether D'Amelio used the Internet or a telephone makes no difference under
the relevant statute." 683 F.3d at 422.

The Second Circuit ultimately held that "D'Amelio received constitutional notice."
683 F.3d at 423. We also think Vaughn received constitutional notice. At most the
instructions here included variances with the charges, not constructive amendments of the
charges.

Next, Vaughn complains about the instruction relating to Count 8—that the
evidence of the cash stolen from Merritt's presence "does not add up to $108." Of course,
the amount listed in the charging document was approximately $108, and the amount
taken from Merritt's presence was $132 ($120 in Ringer's tips, $2 belonging to Merritt,
and the roll of quarters). The amount of money shown at trial that was taken and the
amount in the charging document alleged to have been taken was comparatively similar
in value. We find no error.

Vaughn also asserts in passing that "there was evidence of other items taken." That
is true, but there was no evidence of other items taken from Merritt's presence. We see no
variance on this aspect of the proof.

With regard to the attempted aggravated robbery instruction, Vaughn also
complains of a variance between this instruction and the evidence at trial relating to the
overt act in support of the crime alleged in Count 9 of the charging document. In
particular, Vaughn argues the trial evidence established overt acts other than the one
charged—putting items in trash bags in the living room.

Recently, our Supreme Court explained Kansas law regarding overt acts:
33


"Kansas law does not provide definitive rules as to what constitutes an overt act
toward attempting a crime. The overt act necessarily must extend beyond mere
preparations made by the accused and must approach sufficiently near to the
consummation of the offense to stand either as the first or subsequent step in a direct
movement toward the completed offense." State v. Ortega, 300 Kan. 761, Syl. ¶ 1, 335
P.3d 93 (2014).

Entering the house with pistols drawn, centralizing the victims in the living room,
and searching the house for valuables were all overt acts towards the commission of
aggravated robbery. In State v. Calvin, 279 Kan. 193, 200, 105 P.3d 710 (2005), for
example, our Supreme Court found an overt act towards robbery when "the defendant
gained access to the victim's home with the intent of getting the door open for one of the
codefendant's so he could rob the victim." Once the defendant had the door open, the
codefendant pointed a gun at the victim. In the present case, as well, the intruders
committed other overt acts in addition to putting items in trash bags.

It is apparent that, given the range of overt acts which took place, the jury
instruction on Count 9 was broader than the charging document. Vaughn's request that
the instruction conform to the charging document was supported by the evidence. We
thus find a variance between the instruction and the charging document in this instance.

Was this error reversible or harmless? Vaughn argues that since he was subjected
to "conviction based on a crime never charged," it "is irrelevant whether there was
evidence to support the overbroad instructions." But Vaughn incorrectly assumes the
instructions constructively amended the charging document. On the contrary, the error
here did not go beyond a variance, and so the error is only reversible if it prejudiced
Vaughn's substantial rights. See 3 Wright & Welling, Federal Practice and Procedure:
Criminal 4th § 516, p. 46; accord K.S.A. 2015 Supp. 60-261.

34

"The law that a verdict is invalid if the proof and/or instructions are too different
from the indictment is constitutional." 3 Wright & Welling, Federal Practice and
Procedure: Criminal 4th § 516, p. 44. We therefore apply the constitutional harmless
error standard: "[T]he error may be declared harmless where the party benefitting from
the error proves beyond a reasonable doubt that the error . . . did not affect the outcome
of the trial in light of the entire record, i.e., where there is no reasonable possibility that
the error contributed to the verdict." State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012).

The State correctly argues that neither Vaughn nor the jury could have been
confused by the variance. The variance regarding the overt act did not rise to the level of
reversible error. The evidence of other possible overt acts was integral to the crimes
charged and could not have constituted surprise at trial. The State also relied in its closing
argument on the overt act it had earlier pled:

"Attempted aggravated robbery. Number 1, the defendant performed an overt act
toward the commission of aggravated robbery. An overt act must extend beyond mere
preparation and be a first or subsequent step, a direct movement towards the completed
offense. This is when we are talking about all of the items being bagged up in the living
room. They are not just planning, okay, they are going to take this stuff.
. . . .
"No question why they are there. Their actions show that. They are there to
commit aggravated robbery. The items are bagged up."

Considering the record as a whole, there is no reasonable possibility any variance
between Count 9 of the charging document and the jury instruction contributed to the
verdict. The State met its burden to show any error was harmless beyond a reasonable
doubt.

Affirmed.