dissenting: I respectfully dissent from the majority’s finding that the evidence was sufficient to support Stevens’ DUI conviction upon the alternative means of attempting to operate a vehicle.
The majority declares that K.S.A. 2005 Supp. 8-1567 creates alternative means by which one may commit the crime of DUI. As authority, it relies on a statement in State v. Kendall, 274 Kan. 1003, 1009, 58 P.3d 660 (2002), that the statute encompasses both those who operate under the influence and those who try to operate but fail. The majority emphasizes the concluding prepositional phrase, “with no election required.” Interestingly, Stevens relies heavily upon the same case, especially Kendall’s characterization of operating under the influence and attempting to operate under the influence as “theories of guilt.” 274 Kan. at 1010.
In Kendall, law enforcement found Kendall passed out in a stationary vehicle with his foot on the brake pedal, the transmission *345in neutral, and the engine running. In the ensuing trial, the jury was given separate DUI elements instructions, one alleging “ ‘[tjhat the defendant drove a vehicle,’ ” and one alleging “ ‘[tjhat the defendant attempted to drive a vehicle.’ ” 274 Kan. at 1007. Additionally, the jury was instructed that “ ‘[tjhe defendant is charged in the alternative with operating or attempting to operate a vehicle while under the influence of alcohol. You are instructed that the alternative charges constitute one crime.’ ” 274 Kan. at 1007. The verdict form presented the jury with three options: (1) guilty of DUI “by driving a motor vehicle”; (2) guilty of DUI “by attempting to drive a motor vehicle”; or (3) not guilty.
During deliberations, the Kendall jury asked for a legal definition of driving. The trial court’s response included the incorrect statement: “ ‘Movement of the vehicle is not required.’ ” 274 Kan. at 1010. The Kendall opinion found the court’s response to be erroneous. To operate a vehicle means to drive it. Kendall’s conviction for operating a vehicle under the influence required evidence, either direct or circumstantial, that defendant drove the vehicle, i.e., vehicle movement was required.
However, Kendall found that the defendant could be convicted of DUI under the theory that he attempted to operate the vehicle, even in the absence of any evidence that the vehicle moved. The court found the record contained ample evidence to support the attempt to operate theory. Further, because Kendall’s defense was a general denial, our Supreme Court found that he was not prejudiced by the erroneous instruction and declared the error to be harmless. Apparently, under the Kendall thinking, a prosecutor who alleges that a defendant either drove a vehicle or attempted to drive a vehicle is proceeding under two “theories of guilt.” However, a defendant who asserts that he or she neither drove a vehicle nor attempted to drive a vehicle is proceeding under only one theory of defense.
I must confess to some reservation in declaring that Kendall actually intended to treat the operating and attempting to operate theories as alternative means of committing DUI. As noted, the case had been presented to the jury as alternative charges with separate elements instructions and separate verdict options. The *346Kendall court upheld the DUI conviction because “there was ample evidence that Kendall attempted to operate the vehicle.” 274 Kan. at 1011. That is, the evidence supported one of the alternative charges. However, State v. Timley, 255 Kan. 286, Syl. ¶ 1,875 P.2d 242 (1994), had declared some 8 years earlier that “[u]nanimity is not required ... as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” (Emphasis added.) Kendall never mentions “alternative means” and does not identify the substantial evidence that would support the alternative of operating under the influence, as opposed to attempting to operate. Therefore, Kendall’s isolated, unexplained prepositional phrase, “with no election required,” is difficult to place within the context of the facts of that case.
Nevertheless, if we are presented with an alternative means scenario, I agree that Timley should control, and we must find substantial evidence to support both alternatives, i.e., that Stevens drove while under the influence and that Stevens attempted to operate his vehicle while under the influence. Cf. Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 296 (2005) (noting cases subsequent to Timley that affirmed convictions even though the record was devoid of evidence to support one of the charged alternative means). I can accept the majority’s holding that the evidence was sufficient for a rational jury to reasonably infer that Stevens, while under the influence of alcohol, drove his vehicle to the place where it was parked when Officer Justice arrived. However, the jury did not have sufficient evidence to find that Stevens attempted to operate his vehicle but failed to drive it.
One might perceive that an “attempt to operate” would always precede an actual operation; one cannot drive a vehicle without first trying to do so. In that event, evidence supporting operation would necessarily support the precedent attempt to operate. However, if that were true, attempting to operate would be a lesser included offense of operating a vehicle. See K.S.A. 2005 Supp. 21-3107(2)(b) (attempt to commit a crime is a lesser included offense). Therefore, if attempt to operate is to be considered a coequal, alternative means of committing DUI, a critical element of that *347alternative is that the defendant failed in his or her attempt to operate or drive the vehicle. Cf. K.S.A. 21-3301 (defining attempt in terms of failing to complete the crime).
The majority is persuaded that the following facts are substantial evidence that Stevens tried but failed to drive his vehicle: (1) Stevens was occupying the drivers seat when Officer Justice arrived; (2) another person occupied the passenger seat; (3) the keys were in the vehicle ignition; and (4) the vehicle was parked in front of another person’s residence. I do not perceive these facts as creating a reasonable inference of a failed attempt to operate the vehicle. See State v. Johnson, 33 Kan. App. 2d 490, 502, 106 P.3d 65 (2004) (an inference may not rest upon another inference). To the contrary, the established fact that Stevens’ vehicle was parked in front of another’s residence creates tire inference that Stevens was successful in driving his vehicle to that location. Stevens’ actions in exiting the vehicle, proceeding to the front door of tire residence, and knocking on the door support the inference that he drove there, rather than that he failed to drive. Indeed, that is the inference the prosecutor wanted the jury to draw when he argued that the more “reasonable way to look at it is [Stevens] was in front of a house where he was not welcome, he just drove up, he was just jumping out wanting to make contact because he was not aware that he was not welcome there.”
Unlike the situation in Kendall, Stevens’ vehicle was not in tire middle of the street, its engine was not running, its transmission was not in neutral, and its headlights and brake lights were not illuminated. Further, in closing argument, the prosecutor did not even suggest that Stevens made a failed attempt to drive the vehicle. When we review an alternative means case, we must consider whether a rational trier of fact could have found each alleged means of committing the crime to have been proved by the State beyond a reasonable doubt. See State v. Morton, 277 Kan. 575, 580, 86 P.3d 535 (2004). Here, the State failed to prove beyond a reasonable doubt that Stevens attempted to operate his vehicle, as opposed to actually operating the vehicle. Therefore, I would reverse and remand for retrial upon the sole means of committing DUI by operating a vehicle while under the influence. One might *348consider this disposition unnecessary, given the evidence that Stevens operated the vehicle, including his confession. However, if Timley is to mean what it says, reversal is mandated.
Before concluding, I want to clarify my position on the admission of Stevens’ statements. I would find that the suppression issue was not preserved for appeal. Stevens did not file a motion to suppress pursuant to K.S.A. 22-3215, and he did not object when the statements were offered at trial. However, I disagree with the majority’s further determination that Stevens was not in custody when he made the statements.