dissenting: I disagree with the majority and would find that there was sufficient evidence to support the jury’s verdict that Clifford O’Rear recklessly caused great bodily harm to Samuel Jackson.
As the majority points out, the standard of review requires us to view the evidence in the light most favorable to the State. State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010). Rather than do this, the majority has focused on facts that are contrary to the *904verdict and has justified doing so because those facts prove a different crime than the one charged.
Under the twist from the usual that occurred in this case, it was in O’Rear’s potential best interest to admit to intentional actions, rather than to try to make his actions seem reckless. Hence, it was to his benefit to admit that he purposefully fired at center mass. Yet other evidence suggests that O’Rear was not paying attention to what was happening around him and reacted hurriedly without assessing the situation. From this evidence a reasonable jury could conclude O’Rear did not intentionally cause great bodily harm to Jackson. Rather, the jury could conclude that O’Rear’s conduct in firing the gun was as reckless as his assessment of the situation. Yet, the majority accepts O’Rear’s self-serving statement as unassailable.
As an appellate court we should filter the evidence that is contrary to the verdict and set it aside, meaning that in this case we should not consider the evidence of intentional conduct but should examine the record for evidence that supports the verdict of reckless conduct. In doing so, an appellate court should not expect the State to have disproved the elements of other crimes, such as an intentional crime when it had charged a reckless crime. Consequently, applying the sufficiency of evidence standard of review, I would not exonerate a defendant because the State proved a less culpable crime when evidence could also be viewed as supporting the more culpable offense.
As one court explained in sustaining a verdict for reckless endangerment despite evidence that the defendant purposely harmed the victim, when a legislature describes the requisite mental state for a crime, it describes the
“minimum content for a finding of guilt in a particular degree, not the maximum content. It is always a defense to prove that one is less culpable than charged. It is not a defense to prove that one is more culpable than charged. One does not defend against a charge of second-degree murder by proving that one was really guilty of first-degree murder. To prove culpability at a given level, the State is not required to disprove greater culpability, although a casual scanning of definitional sentences might sometimes lead us to believe so.
*905“To be guilty of reckless endangerment, the defendant must be shown to have possessed nothing less than a reckless disregard of the consequences of his life-threatening act. He may, however, be shown to have possessed a more blameworthy mens rea, such as an intent to maim, but that excess culpability will be simply surplusage as far as the reckless endangerment charge is concerned. It certainly does not operate to exculpate him of the reckless endangerment.
“This type of linguistic problem is a recurring phenomenon in the criminal law. Although slack linguistic usage frequently describes a lesser degree of guilt in terms of the absence of a greater degree of guilt, the absence of the greater guilt is never an affirmative element that must be proved.” Williams v. State, 100 Md. App. 468, 477, 641 A.2d 990 (1994).
For example, the court noted: “Second-degree .murder is frequently described as unpremeditated murder. It does not, however, require proof of nonpremeditation.” Williams, 100 Md. App. at 477. Further explaining its reasoning by example, the Williams court stated:
“How, one might ask, could a single manslaughter, for instance, be both involuntary and voluntary? Linguistically, it would seem that the two are mutually exclusive. If, indeed, a conviction for involuntary manslaughter required demonstrated proof that the killing was not voluntary, then findings that it was both involuntary and voluntary would, indeed, be inconsistent. Because, however, a finding of involuntary manslaughter may imply nothing more than the non-proof of voluntariness, simultaneous findings of both involuntariness and voluntariness would require no more than the merger of the lesser mens rea into the greater. Cf. State v. Parker, 128 Ariz. 107, 624 P.2d 304 (1980).” Williams, 100 Md. App. at 478.
I agree with this reasoning and disagree with the majority’s position of focusing on the evidence contrary to the jury verdict rather than applying the correct standard of review. Because I agree with the Court of Appeals’ treatment of the other issues it considered, I would affirm the conviction.
Rosen, J., joins in the foregoing dissent.