State v. Thach

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,231

STATE OF KANSAS,
Appellee,

v.

JERRY THACH,
Appellant.

SYLLABUS BY THE COURT

1.
An appellate court reviews the sufficiency of the evidence by looking at all the
evidence in a light most favorable to the prosecution and determining whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. A reviewing
court will not reweigh evidence, resolve evidentiary conflicts, make witness credibility
determinations, or otherwise usurp the role of a jury.

2.
Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an
appellant raising a constitutional issue for the first time on appeal to affirmatively invoke
and argue an exception to the general rule that such claims may not be raised for the first
time on appeal. Failure to satisfy Rule 6.02(a)(5) in this respect amounts to an
abandonment of the constitutional claim.

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3.
The State may use circumstantial evidence to prove a defendant's conscious
objective or desire to engage in the conduct or cause the result of a charged crime and
thus meet the mental state requirement defined in K.S.A. 2015 Supp. 21-5202(h). Using
circumstantial evidence, the State presented sufficient evidence of the defendant's mental
state in this case.

4.
Premeditated and felony murder are not separate, distinct offenses but are two
separate theories under which the crime of first-degree murder may be committed.
Presenting alternative theories of premeditated and felony murder does not offend due
process.

Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed September 9,
2016. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was
on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Jerry Thach asks us to determine whether sufficient evidence
supports his convictions for felony murder and aggravated burglary, charges which stem
from the violent death of Pheng Xiong on August 4, 2012. Thach admits to being one of

2
four men who broke into Xiong's home and killed him. Thach argues there was
insufficient evidence of his intent and that as a result his convictions should be vacated.

We disagree. The crux of Thach's argument is a challenge to the State's proof of
aggravated burglary—which is important not only as a stand-alone criminal conviction,
but also as the underlying inherently dangerous felony required to support Thach's
felony-murder conviction. For purposes of both convictions, the aggravated burglary was,
as charged, based on Thach's entry into Xiong's home with the "intent to commit an
Aggravated Battery." Thach's intent is the main issue here: Due to the charging structure,
the State was required to prove Thach's intent to commit aggravated battery in order to
prove the aggravated burglary and the felony-murder convictions.

The State did so. A reasonable jury could readily conclude Thach entered Xiong's
house with the conscious objective of committing aggravated battery, which is enough to
uphold his convictions for aggravated burglary and, in turn, felony murder. We reject
Thach's attempt to force the State to provide direct evidence of his intent—circumstantial
evidence has long been acceptable as evidence of this criminal element, and the
legislature's adoption of K.S.A. 2015 Supp. 21-5202 does not require us to depart from
our well-established precedent on this point.

As a separate matter, we are unpersuaded by Thach's argument that his due
process rights were violated by the State's choice to seek convictions on, in the
alternative, first-degree premeditated murder and first-degree felony murder charges.

Accordingly, we affirm Thach's convictions.

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 FACTUAL AND PROCEDURAL BACKGROUND

Thach's trial spanned 7 days and included testimony from 29 witnesses. We need
not recount the entirety of the trial and will instead focus on the testimony most relevant
to Thach's appeal—that of Vat Sana Khamvongsa, who participated in the crimes; law
enforcement officers who took Thach's statement; and the coroner.

Khamvongsa testified Thach picked him up around 9 p.m. on August 3, 2012.
They had plans to go out and first stopped at Rathanak Chea's house. While they were
waiting for Chea, who was not home, Xiong and his girlfriend arrived. Once Chea came
home the entire group went inside to watch television and drink. At some point Chea left
to pick up another man, Caesar Louis. Khamvongsa, Chea, Louis, and Thach left for a bar
around midnight; Xiong met them there after taking his girlfriend home.

The group went to a total of three bars over the course of the evening. After the
bars closed, Chea, Louis, Khamvongsa, and Thach went back to Chea's house, arriving
around 2:30 or 2:45 a.m. Xiong did not go with them. Sometime after 3 a.m.,
Khamvongsa heard Chea and Louis "talking about some problem they had" with Xiong.
Apparently, Xiong, whom Khamvongsa thought was a member of the Dead Everlasting
Gangsters (DEG), had gotten into a fight with some of their friends at a restaurant. Chea
and Louis, who were both members of a different gang, the Asian Boyz (AB), were angry
because Xiong was boasting and lying about beating up their friends.

Louis and Chea's conversation became more heated, and Louis expressed a desire
to go to Xiong's house. Chea knew where Xiong lived, and he told Louis, "You've got a
problem. Handle it." Khamvongsa took this to mean Louis "was going to go fight or

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something." Chea did not initially do anything to indicate to Khamvongsa this would be
more than a fistfight, but after a little while Chea brought out a big hunting knife.
Khamvongsa touched the knife after one of the men asked him to see if it was sharp. The
conversation turned to heading over to Xiong's house, and eventually Louis, Chea,
Thach, and Khamvongsa left together in Chea's car. According to Khamvongsa, Thach
did not at any point hesitate or resist going to Xiong's house.

Once the four men arrived at Xiong's house, Louis knocked loudly about 15 times.
Xiong did not answer the door and Chea went around the side of the house. Meanwhile,
Thach kicked the front door three times—but he stopped when he was told he was
making too much noise. Chea then went to the other side of the house and said, "I got
him." When the other three men went to look, they saw Chea holding a struggling Xiong,
who was halfway out the window. At Chea's request, Khamvongsa held one of Xiong's
arms while Thach and Chea went through the bedroom window and into the house.

One of the men then went through the house and opened the front door. Louis
walked inside and Khamvongsa followed, after giving control of Xiong to Louis, Chea,
and Thach. By the time Khamvongsa joined the others, Xiong had been beaten—he was
pretty bruised up. Khamvongsa initially told police Thach was the first person into
Xiong's home and had been hitting Xiong, but on cross-examination he testified he never
actually saw anybody inflict Xiong's bruises and did not hear punches being thrown.
Khamvongsa saw Thach standing by Xiong's legs at the foot of the bed, with Chea and
Louis on either side of the bed. Louis slowly pulled out the hunting knife. Thach
complied with Louis' direction to see if anyone else was in the house, and Thach then
returned to the foot of the bed and held down Xiong's legs. Louis taunted Xiong and
eventually asked Xiong if he had any last words. Louis then cut Xiong's throat.

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 At that point, Louis tried to hand Khamvongsa the knife as he asked whether
Khamvongsa "was down." Khamvongsa said, "No," and refused the knife. Khamvongsa
did not recall Louis offering the knife to Thach or Chea. Louis told Khamvongsa to turn
around and face the wall, which Khamvongsa did. Khamvongsa then heard a sound he
believed to be blood gushing. Nobody said to stop, and Thach continued to hold onto
Xiong's legs.

Thach, Louis, and Chea cleaned some blood splatters and wiped down areas the
men had touched. Louis warned the group not to get on their phones, and the men headed
out the door. After making sure nobody was outside to see them, the men got into Chea's
car and drove off. At this point, Louis had Xiong's cell phone and Thach had the knife.

According to Khamvongsa's testimony, when the men arrived back at Chea's
house, Chea got everyone a beer. Nobody tried to leave. Louis seemed to be acting
normally, and Chea even seemed pretty happy. Chea kept saying, "Don't fuck with us,"
which Khamvongsa thought meant don't mess with the AB's—the Asian Boyz gang. At
one point in Khamvongsa's testimony he indicated Thach acted the same as he had before
they drove to Xiong's house, but he later said Thach acted scared. Louis warned
Khamvongsa that if anybody asked, he did not know Louis' name—but Louis did not
give Thach a similar warning. After about 20 minutes, Thach took Khamvongsa home.
Khamvongsa initially testified he and Thach did not speak on the drive, but he later stated
Thach had told him not to freak out and not to think about it too much.

According to Khamvongsa, the four men did not discuss what would happen at
Xiong's house before they arrived—it just happened. He turned himself into the police

6
and testified at Thach's trial in exchange for the State dropping the most serious charge
against him.

Thach did not testify at trial, but law enforcement officers testified about his
statements to police. Thach repeatedly denied going anywhere before heading out to the
bars, but he eventually admitted he had briefly been at Chea's house. Thach did not
initially remember Xiong being at Chea's that night but later asserted Xiong was present
along with his girlfriend. He admitted being with Xiong at the bars on the night of the
murder, but he claimed he took Khamvongsa straight home once the bars closed and
arrived home himself at 2:30 a.m. He unwaveringly denied ever being at Xiong's home
on the night of August 3 or the morning of August 4.

Police eventually told Thach there was physical evidence putting him at Xiong's
house—a tentative fingerprint match found on a broken Heineken bottle in one of Xiong's
neighbor's yard. The police also confronted Thach with cell phone records, which showed
text message exchanges between Thach and others up until a little before 3 a.m. on
August 4, after which there were no incoming or outgoing texts from Thach's phone until
noon. According to law enforcement testimony, after being shown these messages Thach
changed his story to say he went to his girlfriend's house but did not go inside until 4 a.m.
He said he stayed outside her house from 2:30 until 4 a.m., texting her about a
disagreement they were having.

The coroner testified Xiong suffered bruising on his face in addition to his
extensive neck injury. The bruising occurred before death, but the coroner could not say
how much earlier. The coroner explained she found multiple "incised wounds," meaning
wounds longer across the skin than deep, caused by a knife or other sharp object and one

7
deep wound that went through Xiong's airway and penetrated clear to his spine. Xiong
suffered approximately 20 blunt force injuries.

The State charged Thach with first-degree premediated murder or, alternatively,
first-degree felony murder; aggravated burglary; and aggravated robbery. The jury found
Thach guilty of the alternative charge of first-degree felony murder and aggravated
burglary and not guilty of first-degree premeditated murder and aggravated robbery. The
district court sentenced Thach to life imprisonment with a minimum of 20 years for
felony murder, plus 49 months for aggravated burglary, to be served consecutively.

ANALYSIS

On appeal, Thach raises two principal issues: (1) Whether there was sufficient
evidence to support his first-degree felony-murder and aggravated burglary convictions;
and (2) whether the State's presentation of two theories of first-degree murder violated his
due process rights. We reject both claims.

ISSUE 1: There was sufficient evidence supporting Thach's felony-murder and
aggravated burglary convictions.

As we outlined above, Thach urges us to vacate his convictions on the grounds
there was insufficient evidence of intent to commit the charged crimes because there was
no evidence Thach entered Xiong's home with the intent to commit an aggravated
battery. He also asserts circumstantial evidence cannot be used under K.S.A. 2015 Supp.
21-5202 to establish he acted with the requisite mental state.

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Standard of Review

The State must present "evidence supporting each element of a crime." State v.
Williams, 299 Kan. 509, 528, 324 P.3d 1078 (2014). We review the sufficiency of the
evidence by "looking at all the evidence in a light most favorable to the prosecution and
determining whether a rational factfinder could have found the defendant guilty beyond a
reasonable doubt." State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). We will
not "reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations" or otherwise usurp the role of a jury. Williams, 299 Kan. at 525; see State
v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).

Statutory Elements

Keeping in mind the State's duty to prove each element of the charged crimes, we
turn now to the specific criminal elements at issue in Thach's case. Thach was convicted
of first-degree felony murder based on Xiong's death during the commission of
"Aggravated Burglary with the intent to commit an Aggravated Battery." See K.S.A.
2015 Supp. 21-5402(a)(2) ("Murder in the first degree is the killing of a human being
committed: . . . in the commission of, attempt to commit, or flight from any inherently
dangerous felony"); K.S.A. 2015 Supp. 21-5402(c)(1)(J) (classifying aggravated burglary
as an inherently dangerous felony). Thach was also convicted of aggravated burglary,
which, similar to the structure of the felony-murder charge, was based on his entry into
Xiong's home with the intent to commit aggravated battery. See K.S.A. 2015 Supp.
21-5807(b) ("Aggravated burglary is, without authority, entering into or remaining within
any building . . . in which there is a human being with intent to commit a felony.").

9
 As we previously mentioned, Thach's sufficiency challenge is focused on whether
the State showed he intended to commit aggravated burglary and the underlying
aggravated battery—a challenge which, due to the charging structure, affects both his
felony-murder and aggravated burglary convictions. See State v. Brown, 300 Kan. 565,
581, 331 P.3d 797 (2014) (requiring the State to present sufficient evidence of the
underlying felony, even if it need not prove the completion of the underlying felony); cf.
State v. Brown, 299 Kan. 1021, 1029, 327 P.3d 1002 (2014) (stating, with respect to an
aggravated burglary charge, that the State "merely needed to prove that [the defendant]
entered into the apartment with the intent to commit an inherently dangerous felony; it
did not have to convict him of the underlying felony").

"Aggravated burglary is, without authority, entering into or remaining within any
building . . . in which there is a human being with intent to commit a felony [such as
aggravated battery], theft or sexually motivated crime therein." (Emphasis added.) K.S.A.
2015 Supp. 21-5807(b). Aggravated battery, as relevant to Thach's case, is "knowingly
causing bodily harm to another person with a deadly weapon, or in any manner whereby
great bodily harm, disfigurement or death can be inflicted." K.S.A. 2015 Supp. 21-
5413(b)(1)(B).

Both these criminal statutes encompass a state of mind element. Kansas law
provides the following definition for acting "with intent":

"A person acts 'intentionally,' or 'with intent,' with respect to the nature of such
person's conduct or to a result of such person's conduct when it is such person's conscious
objective or desire to engage in the conduct or cause the result. All crimes defined in this

10
 code in which the mental culpability requirement is expressed as 'intentionally' or 'with
intent' are specific intent crimes." K.S.A. 2015 Supp. 21-5202(h).

See PIK Crim. 4th 52.010 (2015 Supp.) (incorporating this statutory language);
State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003) ("Aggravated
burglary is a specific intent crime . . . .").

Our statutes also set forth a definition for acting "knowingly":

"A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such
person's conduct or to circumstances surrounding such person's conduct when such person
is aware of the nature of such person's conduct or that the circumstances exist. A person
acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's conduct when
such person is aware that such person's conduct is reasonably certain to cause the result."
K.S.A. 2015 Supp. 21-5202(i).

The jury instructions properly reflected the elements of the charged crimes and
encompassed the applicable statutory mental state for acting with intent. And so, with
these statutes in mind, we turn to Thach's arguments and inquire whether there is
sufficient evidence showing Xiong died during the commission of an aggravated
burglary, which, as charged, requires us to also ask whether there was sufficient evidence
Thach entered Xiong's home with the "conscious objective or desire" to knowingly cause
bodily harm to Xiong "with a deadly weapon, or in any manner whereby great bodily
harm, disfigurement or death can be inflicted." K.S.A. 2015 Supp. 21-5413(b)(1); see
Makthepharak, 276 Kan. at 570 ("To obtain a conviction on the aggravated burglary
charge, the State was required to prove that [the defendant] knowingly entered into or
remained within [the victim's] house without authority and with intent to commit

11
aggravated battery"; "[t]o prove first-degree felony murder, the State had to prove that
[the defendant] killed [the victim] during the commission of or while attempting to
commit aggravated burglary.").

Thach's arguments lack merit.

Thach, focusing on the State's pretrial arguments and its opening and closing
statements to the jury, contends "[t]he whole presentation [by the State] was about the
conspiracy to commit murder, not to go and commit aggravated battery" and "there was
no evidence, ever, of anything other than an intent to commit a murder." Thach seems to
argue the State failed to prove aggravated battery because it introduced evidence and
focused on the theory that Thach and others acted with the sole purpose of killing—not
just battering—Xiong. In other words, the State overshot any intention to commit
aggravated battery and, as a result, Thach's convictions must fall.

We need not analyze the underlying legal premise of Thach's argument—or any of
the legal or factual assumptions embedded within it—because, regardless of what the
State attempted to prove, it failed to convince the jury beyond a reasonable doubt that
Thach premeditated Xiong's murder. See Williams, 299 Kan. at 525 (prohibiting us from
reweighing the evidence). And the State's focus on premeditation—almost to the
exclusion of felony murder—does not alter the fact the court instructed the jury on felony
murder as an alternative to premeditated murder. Our only concern given the jury's
verdict becomes whether the State presented evidence on which a reasonable factfinder
could conclude beyond a reasonable doubt that Thach entered Xiong's house with intent
to cause bodily harm with a deadly weapon or in a manner by which great bodily harm,
disfigurement, or death could result. See Frye, 294 Kan. at 374-75 (prompting courts to

12
look at all the evidence in the light most favorable to the State); see also State v. Daws,
303 Kan. 785, 789, 368 P.3d 1074 (2016) (explaining that burglary charged as entering
into, as opposed to remaining within, occurs "when the evidence shows a defendant
crossed the plane of a building's exterior wall").

Thach argues there was insufficient evidence of his intent regardless of what the
evidence showed about Khamvongsa's mental state (which Khamvongsa said was to
commit a battery) or the other men's mental states. He first contends the language
defining culpable mental states in K.S.A. 2015 Supp. 21-5202, which he refers to as a
"troubling new culpability statute," is in essence "a constitutional nullity." He seems to
argue that 21-5202—which replaced an earlier culpability statute as of July 1, 2011—
does not provide an objective standard for use by the jury. He then argues the State
cannot meet the standard in 21-5202 by relying on circumstantial evidence to prove
intent. For both arguments, he cites to the language in 21-5202 focusing on a "person's
conscious objective or desire to engage" in the charged conduct.

Regarding the constitutional aspects of Thach's argument, he concedes he did not
raise this issue before the district court. We generally decline to hear constitutional
arguments raised for the first time on appeal. See State v. Godfrey, 301 Kan. 1041, 1043,
350 P.3d 1068 (2015). As Thach points out, however, appellate courts may hear a
constitutional issue for the first time on appeal if the issue falls within at least one of
three recognized exceptions. But we require the party asserting the issue to explain how
the exception applies. See Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R.
Annot. 41) (requiring the complaining party to provide an explanation why the issue is
properly before the court); Godfrey, 301 Kan. at 1043. Thach fails to identify which
exception he relies upon or to explain how the exception fits. Accordingly, his

13
constitutional nullity argument is abandoned under Supreme Court Rule 6.02(a)(5).
Godfrey, 301 Kan. at 1044.

Nevertheless, Thach also argues the "conscious objective" language of K.S.A.
2015 Supp. 21-5202 means the State cannot prove intent "absent a statement from a
defendant as to what they did and what their desired outcome was." In other words, he
contends circumstantial evidence is not enough to sufficiently demonstrate a conscious
objective.

Certainly, a direct statement by Thach would provide persuasive direct evidence of
his conscious objective. And Thach correctly notes that someone else's conscious
objective cannot be substituted for his. But that does not mean the circumstances leading
one actor to a certain conscious objective cannot be used by a jury to infer another actor
would have possessed the same conscious objective.

"Circumstantial evidence in law is evidence that tends to prove a fact in issue by
proving other events or circumstances which, according to the common experience of
mankind, are usually or always attended by the fact in issue, and therefore affords a basis
for a reasonable inference by the jury . . . of the fact in issue." (Emphasis added.) Casey
v. Phillips Pipeline Co., 199 Kan. 538, 550, 431 P.2d 518 (1967).

We have previously stated that "[a] conviction of even the gravest offense may be
sustained by circumstantial evidence." State v. Graham, 247 Kan. 388, 398, 799 P.2d
1003 (1990). And juries have historically used circumstantial evidence to prove intent.
State v. Jones, 202 Kan. 31, 43, 446 P.2d 851 (1968). Indeed, we have intimated that
circumstantial evidence of intent is almost to be expected: "Intent, a state of mind
existing at the time an offense is committed, does not need to be and rarely can be

14
directly proven" through direct evidence. State v. Griffin, 279 Kan. 634, 638, 112 P.3d
862 (2005).

All of these cases predate July 1, 2011, the effective date of K.S.A. 2015 Supp.
21-5202. We have cited to 21-5202 only a handful of times since its enactment, and
neither party has pointed us to a prior decision of this court specifically discussing
circumstantial evidence with respect to a defendant's culpable mental state under that
particular statute. But see, e.g., State v. Loyo, No. 112,179, 2015 WL 7162109, at *4
(Kan. App. 2015) (unpublished opinion) ("The State can prove specific intent . . . with
circumstantial evidence."). We do so now.

In interpreting K.S.A. 2015 Supp. 21-5202(h), we

"'first attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. [Citation omitted.] When a statute is plain and
unambiguous, an appellate court does not speculate as to the legislative intent behind it
and will not read into the statute something not readily found in it. Where there is no
ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history or other background considerations to construe the legislature's intent.
[Citation omitted.]' (Emphasis added.)" State v. Keel, 302 Kan. 560, 572, 357 P.3d 251
(2015), cert. denied 136 S. Ct. 865 (2016).

We find no words in K.S.A. 2015 Supp. 21-5202(h) limiting the manner of
proving a defendant's conscious objective. Thach's argument seems to be that intent can
only be proven by direct evidence because it is a subjective state of mind. But this theory
has been soundly rejected by other courts.

15
 The language on which Thach focuses comes from the Model Penal Code. See
Kansas Criminal Code Recodification Commission, 2010 Final Report to the Kansas
Legislature, Vol. 1, 21-23 (December 16, 2009) (explaining effort to clarify Kansas
concepts of culpability and recommending closer adherence to the Model Penal Code);
see also American Law Institute, Model Penal Code §§ 1.13(11)-(12), 2.02(2)(a)(i)
(1985). As one court explained:

"As to the element of intent, it is similarly well-settled that intent may be
circumstantially shown through conduct and circumstances.

"'Intentionally' is a familiar concept, requiring one person's 'conscious
objective' to be to cause a result, or to engage in conduct, which is
described by a statute defining an offense [citation omitted]. While intent
is a subjective state of mind, it may be proved by circumstantial
evidence, and the objective evidence of the surrounding circumstances
may be examined to determine a person's 'conscious objective.'"

People v. Santos, 17 Misc. 3d 520, 529, 841 N.Y.S.2d 852 (2007).

Many other courts have declared that intent usually must be inferred because
direct evidence of a defendant's state of mind is so rarely available. See, e.g., Scudero v.
State, 917 P.2d 683, 688 (Alaska App. 1996); Cooley v. State, 271 Ark. 153, 155, 607
S.W.2d 386 (1980); Chambers v. People, 682 P.2d 1173, 1176 n.8 (Colo. 1984) (en
banc); State v. Bennett, 307 Conn. 758, 765-66, 59 A.3d 221 (2013); Gilliam v. State, 494
N.E.2d 319, 320 (Ind. 1986); People v. Shanklin, 59 A.D.2d 588, 589, 397 N.Y.S.2d 242
(1977); State v. Pitts, 259 Or. App. 372, 376, 314 P.3d 324 (2013); State v. Mann, 959

16
S.W.2d 503, 518-19 (Tenn. 1997); State v. Maestas, 2012 UT 46, ¶¶ 178-79, 299 P.3d
892 (Utah 2012).

Nothing in the statute prompts us to stray from our previous rulings that
circumstantial evidence may sustain even the most serious convictions and that it may be
used to show intent. See Griffin, 279 Kan. at 638; Graham, 247 Kan. at 398; Jones, 202
Kan. at 43. Consequently, we hold the State may use circumstantial evidence to prove a
defendant's conscious objective or desire to engage in the conduct or cause the result of a
charged crime and thus meet the mental state requirement defined in K.S.A. 2015 Supp.
21-5202(h).

With that established, we turn to the evidence of Thach's intent, and we conclude
the State presented sufficient evidence of his intent in this case. See Casey, 199 Kan. at
551 (declaring that in order to constitute substantial or sufficient evidence, circumstantial
evidence "need not rise to that degree of certainty which will exclude any and every other
reasonable conclusion"). Again, the issue pressed by Thach is whether there was
sufficient evidence Xiong died during the commission of an "Aggravated Burglary with
the intent to commit an Aggravated Battery."

Here, the jury heard evidence that two of the men at Chea's house were angry
about a previous fight involving Xiong, the men discussed "handl[ing]" a problem, the
knife was passed around, and Khamvongsa tested its sharpness. Khamvongsa also
testified that Louis asked him to declare he was "down" and later warned him that if
anybody asked he did not know Louis' name. Louis did not make similar statements to
Thach—which suggested Thach intended to participate in the group's actions.

17
 As to whether Thach intended to commit an aggravated battery when he entered
Xiong's house, Khamvongsa testified to the objective evidence of surrounding
circumstances. He understood Chea's and Louis' anger arose from Xiong boasting and
lying about having beaten up some of their friends. He also testified there was no
discussion about killing Xiong. These circumstance led Khamvongsa to understand the
men just planned to beat up Xiong. And those same objective circumstances could lead a
rationale jury to believe beyond a reasonable doubt that Thach shared the same conscious
objective of committing an aggravated battery when he entered Xiong's house.

In addition, Khamvongsa testified to Thach's actions, actions which are consistent
with an intent to commit a battery in a manner that would cause great bodily harm. Thach
manhandled Xiong and, according to at least portions of Khamvongsa's testimony, beat
Xiong to the point where Xiong was pretty bruised up. The coroner verified Xiong
suffered multiple blunt force injuries before death and had bruises and other significant
injuries consistent with a beating. Thach then held Xiong's legs while Louis taunted
Xiong with a knife. Khamvongsa testified Louis made a slicing action across Xiong's
throat and then turned to Khamvongsa and offered the knife. Khamvongsa then turned
away and at that point heard what he thought was the gushing of blood. Consistent with
this description, the coroner explained she found multiple incised wounds caused by a
knife or other sharp object and one deep wound that went through Xiong's airway and
penetrated back to his spine. Given the beating and the multiple knife-like wounds, a jury
could conclude Thach entered the house intending to participate in a beating and the
taunting with the knife—an action by which serious bodily injury, disfigurement, or death
can be inflicted.

18
 Thus, construing the evidence in the light most favorable to the State, there was
sufficient circumstantial evidence that Thach entered Xiong's home with the intent to
commit aggravated battery. Based on this evidence a rational factfinder could have found
Thach guilty beyond a reasonable doubt of that crime, a crime which the court instructed
the jury must be found to exist in order to convict Thach of aggravated burglary and
felony murder based on the inherently dangerous crime of aggravated burglary. See State
v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012); State v. Hall, 292 Kan. 841, 858-
59, 257 P.3d 272 (2011); State v. Scott, 271 Kan. 103, 107, 21 P.3d 516 (2001). Thach's
sufficiency argument fails.

ISSUE 2: The State's presentation of two theories of first-degree murder did not violate
Thach's due process rights.

Thach next argues the State violated his due process rights by presenting two
opposing theories of first-degree murder—premeditated first-degree murder and felony
murder. We must decide at the outset whether to even consider Thach's constitutional
argument.

Thach admits he did not raise his due process issue before the district court. In
contrast to his constitutional argument regarding K.S.A. 2015 Supp. 21-5202, this time he
points to two of the recognized exceptions for allowing consideration of a constitutional
issue for the first time on appeal: "The newly asserted claim involves only a question of
law arising on proved or admitted facts and is determinative of the case"; and
"consideration of the claim is necessary to serve the ends of justice or to prevent the
denial of fundamental rights." State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510 (2009);
see Godfrey, 301 Kan. at 1043 (requiring parties asserting a constitutional claim for the

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first time on appeal to invoke an exception). And he makes a sufficient argument that the
issue is one of law to satisfy the requirements of Kansas Supreme Court Rule 6.02(a)(5)
(requiring the complaining party to provide an explanation for why an issue not raised
below is nonetheless properly before the court).

We will therefore consider Thach's argument and exercise unlimited review over
his due process claim. See Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009)
("The question of whether an individual's constitutional rights have been violated is a
question of law over which an appellate court exercises unlimited review.").

We have previously held that "'[p]remeditated and felony murder are not separate,
distinct offenses but are two separate theories under which the crime of first-degree
murder may be committed.'" State v. Morton, 277 Kan. 575, 579, 86 P.3d 535 (2004)
(quoting State v. McKinney, 265 Kan. 104, Syl. ¶ 1, 961 P.2d 1 [1998]). And in Morton,
this court relied on the United States Supreme Court's holding that presenting alternative
theories of premeditated and felony murder does not offend due process. Morton, 277
Kan. at 581 (citing Schad v. Arizona, 501 U.S. 624, 630-45, 111 S. Ct. 2491, 115 L. Ed.
2d 555 [1991]).

Subsequently, in numerous cases we have allowed alternative jury instructions and
verdicts, holding the jury may receive instructions on both theories although a defendant
may not be sentenced to both premeditated murder and felony murder for a single killing.
See, e.g., State v. Young, 277 Kan. 588, 594-95, 87 P.3d 308 (2004); see also State v.
Thomas, 302 Kan. 440, 441, 353 P.3d 1134 (2015) (noting the defendant was charged
with one count of first-degree murder under alternative theories of premeditation and
felony murder, and upholding the defendant's conviction even though the jury could not

20
agree as to which theory applied in the case); State v. Jackson, 223 Kan. 554, 556-57, 575
P.2d 536 (1978) (State may charge alternative theories of first-degree murder and need
not elect a single theory). As these cases establish, premeditated murder and felony
murder are not inherently contradictory but rather separate theories of first-degree
murder.

Our caselaw thus stands squarely at odds with Thach's position, and Thach, for his
part, points to no case where we have required the State to pick either premeditated
first-degree murder or felony murder when prosecuting a single defendant. Instead,
Thach analogizes to cases where courts have prohibited the State from using inherently
factually contradictory theories when trying codefendants for the same crime. Thach has
failed to convince us the analogy holds, but in any event his authority does not support
his argument before this court. See, e.g., Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.
2000) ("To violate due process, an inconsistency must exist at the core of the prosecutor's
cases against defendants for the same crime.").

CONCLUSION

For the foregoing reasons, we affirm Thach's convictions.

Affirmed.

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