concurring in part and dissenting in part: I join the separate opinion by Justice Beier, but I write separately because I believe that the district court erred in refusing to change *373the venue of the trial and that this defendant’s felony murder conviction should be reversed for want of sufficient evidence.
The district court ignored statistically valid evidence that prejudice against the defendant was pervasive throughout Sedgwick County to the extent that one could not expect to find an unbiased jury pool in that community. My rationale in this case is the same as set forth in my separate opinion in codefendant Reginald Carr’s opinion, which I adopt here by reference. See State v. Carr, 299 Kan. 1, 321, 331 P.3d 544 (2014) (Johnson, J., concurring in part and dissenting in part).
Specific to this case, however, I cannot find in the record sufficient competent evidence from which a rational jury could have found J. Carr guilty beyond a reasonable doubt of the felony murder of Linda Ann Walenta. Instead of basing its prosecution upon proven facts and the relevant inferences that could reasonably be drawn from those proven facts, the State relied on speculation as to what might have happened. Cf. State v. Spear, 297 Kan. 780, 791, 304 P.3d 1246 (2013) (quoting United States v. Spirk, 503 F.3d 619, 623 [7th Cir. 2007]) (acknowledging that “many courts have observed that ‘[a] guess is not proof beyond a reasonable doubt’ ”).
As with the change of venue issue, the sufficiency of the evidence issue involves the defendant’s constitutionally guaranteed individual rights. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to prove, beyond a reasonable doubt, each and every element necessary to constitute the crime charged. State v. Gould, 271 Kan. 394, 411, 23 P.3d 801 (2001). While that right emanates from the “people’s document,” the constitution, its enforcement will not always be publicly applauded. Nevertheless, it is incumbent upon this court to make the State comply with its constitutional burden of proof, without regard to the popularity of the result.
As the majority notes, the defense complains of impermissible “inference-stacking.” 300 Kan. at 366. This court has previously tried to explain that prohibition by stating that “inferences may be drawn only from facts established,” that is, inferences may not rest upon another inference. State v. Williams, 229 Kan. 646, 649, 630 P.2d *374694 (1981). But here, tire majority appears to focus on its notion of the difference between direct evidence and circumstantial evidence, which leads it to recite the familiar mantra that even tire most serious crime may be proved by circumstantial evidence. Then, the majority declares that circumstantial proof is not the same as impermissible inference-stacking. 300 Kan. at 366.
Certainly, I cannot quibble with the notion that just because the State’s case is based on circumstantial evidence does not mean that the State is relying on impermissible.inference-stacking. But that statement does not answer the question presented here. We are looking at the quality of tire evidence, rather than the type of evidence. To support a conviction, the evidence must be competent evidence, even if it is circumstantial in nature. In Williams, 229 Kan. at 648, we noted that “[cjonvictions based upon circumstantial evidence . . . can present a special challenge to the appellate court” when reviewing the sufficiency of the evidence because we only permit juries “to draw justifiable inferences from proven circumstances and established facts.” Williams set forth an alternative explanation of the prohibited practice of inference-stacking by specifically placing it in the context of circumstantial evidence: “ ‘[Wjhere reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.’ ” 229 Kan. at 649 (quoting 1 Wharton’s Criminal Evidence § 91, pp. 150-51 [13th ed. 1972]). Here, to get to tire circumstances that would support a reasonable inference that the defendant committed the crime of felony murder, one has to make presumptions and inferences from other circumstances.
When reviewing whether the record contains substantial competent evidence, I find it helpful to first review what elements or claims the State was required to prove in order to obtain a constitutional conviction on the charged crime. As noted, the charged crime was felony murder, the definition of which is located in the first-degree murder statute and requires “the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401(b). In this case, *375the State alleged that the underlying felony was an attempt to commit aggravated robbery upon Walenta. “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm.” K.S.A. 21-3426. That crime is an aggravated robbery if tire robber is armed with a dangerous weapon or inflicts bodily harm upon a person during the robbery. “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a).
But the State did not allege that J. Carr killed Walenta or that he attempted to rob her. Rather, the State’s felony-murder prosecution of J. Carr was based on the theory that he aided and abetted his brother, R. Carr, who was the person that killed Walenta while attempting to rob her. K.S.A. 21-3205(1) provides that “[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” (Emphasis added.) To be criminally responsible, a defendant must aid and abet the principal either before or during the commission of the crime and, most importantly, the aider and abettor must possess the intent to promote or assist in the commission of the charged crime. PIK Crim. 3d 54.05. Mere association with the principal who actually committed the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor. State v. Green, 237 Kan. 146, 149, 697 P.2d 1305 (1985); see Comment, PIK Crim. 3d 54.05. In other words, one is not criminally responsible for accidentally aiding and abetting the commission of a crime; the defendant has to know that the principal is going to commit the charged crime and possess the same criminal intent as the principal in order to be convicted of that crime as an aider and abettor.
With the foregoing in mind, the prosecutor’s theory of prosecution in this case required the State to prove to the juiy beyond a reasonable doubt that J. Carr intentionally drove R. Carr to the site of the crime, with tire intent to promote or assist R. Carr in taking property from Walenta by force or by threat of bodily injury while armed with the handgun that J. Carr may or may not have *376provided, and that during the armed robbery attempt, R. Carr killed Walenta.
The obvious first hurdle for the prosecution was that it had absolutely no proof that R. Carr was attempting an aggravated robbery when he shot Walenta, rather than attempting a kidnapping or even murder. If his brother was not attempting an aggravated robbery, then J. Carr could not have been criminally responsible for felony murder based on aiding and abetting a nonexistent underlying felony. Nevertheless, I will continue the analysis as if R. Carr was attempting an aggravated robbery.
At this point, it might be helpful to briefly discuss the difference between circumstantial evidence and direct evidence. The dictionary definition of “direct evidence” is particularly germane here because it also places the term in the context of an inference or presumption, to-wit: “Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.” Black’s Law Dictionary 675 (10th ed. 2014). Ironically, the majority provides an excellent example of the difference.
After describing Walenta’s personal observation that the gunman emerged from the passenger seat of a light-colored car which pulled away from its parking place immediately after the shooting, the majority declares that “[a] juror need only make one inference from these facts to arrive at a finding that there was another person driving the car that followed her.” Slip op. at 36. Walenta’s statement of what she personally knew from her own observation was direct evidence of the following facts: The gunman exited from the passenger side of a vehicle; the vehicle was light-colored; and the vehicle pulled away from its parking place immediately after the shooting. One need draw no inference or make any presumption for those facts to be established. But the conclusion that someone other than the gunman was the driver of the vehicle is circumstantial evidence. It is only proved by inferring or presuming from Walenta’s direct testimony that if the gunman was the only person in the vehicle, it could not have pulled away without the gunman being in the vehicle.
*377But, of course, the direct evidence from Walenta does not establish the elements of felony murder against J. Carr. The only other persons who were in a position to personally observe the crime and have personal knowledge of any fact that would not require an inference or presumption for proof are the gunman and vehicle driver, alleged to be R. Carr and J. Carr. Neither brother testified or gave a statement admitting that J. Carr drove the car to assist R. Carr in an armed robbery. Even the permissible inference from direct evidence that the majority points out—that someone other than the shooter was driving the car—is insufficient to prove the elements of felony murder outlined above. To get to the elements of the crime, one will need more circumstantial evidence from which to draw reasonable inferences.
In my view, a circumstance that was absolutely essential for the prosecution to establish to permit a rational jury to convict J. Carr of felony murder based upon the State’s theory of prosecution was that J. Carr was driving the light-colored car that Walenta observed. But that circumstantial evidence—that J. Carr was driving the light-colored car—was not established with proven facts. There was no witness that identified J. Carr as the vehicle driver. No witness even saw the driver to be able to provide a description that could be matched against J. Carr.
The only way to establish that J. Carr was driving the car used in the crime is to presume that circumstance based upon other circumstantial evidence. For instance, Tronda Adam’s testimony placing J. Carr with R. Carr not long after Walenta was shot is not direct evidence that they were together during the shooting. Contrary to the majority’s characterization, that testimony was circumstantial because Adams did not personally observe the brothers commit the crime together. To be relevant to J. Carr’s prosecution for felony murder, the juiy had to infer that, if the brothers were together after the shooting, they must have been together during the shooting. Then, from the circumstance that the brothers were together during the shooting, the jury would need to infer that J. Carr was driving the light-colored car at the scene of the crime. From the circumstance that J. Carr was driving the vehicle at the scene of the crime, the jury would have to infer that he was doing *378so in order to knowingly promote or assist his brother in the commission of a crime. And because the State said so, the jury would need to infer or presume that the intended crime was aggravated robbeiy, rather than some other crime such as kidnapping. If that is not inference-stacking, I must confess that the concept must be incomprehensible to me.
Likewise, the testimony describing the vehicle the brothers were using the day of tire shooting required further presumptions and inference-stacking by the jury, notwithstanding the majority’s emphatic denial that it did. Adams did not see the brothers in the car together at the scene of the Walenta killing. Therefore, her testimony did not prove a fact that was relevant to the felony-murder elements without a further inference or presumption, i.e., it was not direct evidence. Pointedly, no witness provided information, such as a license tag number, from which the owner of the light-colored car at the crime scene could be determined. No one even described the make and model of tire car carrying the gunman. All the jury could do with Adams’ testimony was to speculate that the light-colored car observed by Walenta was the same car that Adams saw tire brothers in at other times and further infer that the brothers were still together in that car at the crime scene, and further presume that the unseen driver of the light-colored car at the scene of the crime was J. Carr, who presumably was knowingly assisting his brother in committing an aggravated robbery.
Likewise, Adams’ testimony about the gun does nothing to boost the State’s case. Her “direct observations” about what transpired with the weapon at times other than the shooting, provides absolutely no insight into the elements of the felony-murder charge, unless the juiy simply guesses that J. Carr must have given the weapon to R. Carr and then presume that, in doing so, J. Carr knew that R. Carr was planning to use the weapon to commit an aggravated robbery.
Even if one eschews the term “inference-stacking,” I cannot find that the jury had sufficient proven circumstances and established facts to justify an inference that J. Carr aided and abetted the felony murder of Walenta. Without sufficient competent evidence to sup*379port a constitutionally valid conviction, this court has no choice but to reverse the conviction.
Before concluding, however, I want to briefly discuss my worst nightmare, he., that our inference-stacking, guilt-by-association, character-propensity-reasoning decision in State v. McBroom, 299 Kan. 731, 325 P.3d 1174 (2014), would be applied beyond its facts as establishing precedent for upholding convictions based upon insufficient evidence. The majority cites to McBroom to support its declaration that “the evidence against J. Carr on the Birchwood incident would naturally have reinforced the evidence on the Wal-enta incident.” 300 Kan. at 366. Why do I find that reasoning faulty? Let me count the ways.
First, I would find that it would be quite unnatural for the jury to use the evidence on one charge to reinforce or influence its decision on another charge, because the trial judge specifically told the jurors not to do that. PIK Crim. 3d 68.07, which the judge followed in jury instruction No. 3, instructs a jury as follows:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.”
Second, as noted above, mere association with a principal actor is insufficient to establish criminal responsibility as an aider and abettor, even if the defendant is also merely present at the crime scene. Accordingly, guilty-by-association at another crime scene cannot comport with the constitutional requirement for the State to prove each and every element of die charged crime beyond a reasonable doubt.
Third, we at least pay lip service to the notion that juries should not be permitted to convict a defendant based upon character propensity reasoning. See Comment, Other Misconduct Evidence: Rethinking Kansas Statutes Annotated Section 60-455, 49 Kan. L. Rev. 145, 146 (2000).
“In the criminal context, the State cannot present evidence that a defendant committed a specific bad act on another occasion solely to establish a bad character *380propensity as proof that the defendant must have committed the currently charged crime, i.e., defendant did bad before, therefore defendant must have done bad now.” State v. Coburn, 32 Kan. App. 2d 657, 671-72, 87 P.3d 348 (Johnson, J., concurring), rev. denied 278 Kan. 848 (2004).
That is precisely the reasoning the majority is using; J. Carr did bad at the Birchwood incident so he must have done bad at the Walenta incident.
Fourth, “[ujnder our theory of criminal jurisprudence in this nation, the defendant is clothed with a presumption of innocence until he is proven to be guilty beyond a reasonable doubt by the State.” Williams, 229 Kan. at 663-64. Allowing the State to use evidence of one crime to “reinforce” its proof of another crime denigrates the defendant’s presumption of innocence. In other words, presuming that a defendant did the charged crime because there is evidence that he committed another crime sounds more like bad people are clothed with a presumption of guilt.
Fifth, as I noted above, the State is constitutionally required by the Fourteenth Amendment to prove each and every element necessary to constitute the charged crime beyond a reasonable doubt. Allowing the State’s proof of the charged crime to rely on its having proved another crime reduces its constitutional burden of proof and violates the defendant’s right to due process.
Finally, it is no answer to say that the jury has spoken and an appellate court should not interfere with that decision. To the contrary, our failure to interfere when presented with a constitutional violation is an abdication of our role in the justice system. The jury is a factfinder; it is not charged with the responsibility (or authority) to decide constitutional questions. Where the jury’s factfinding exceeds constitutional boundaries, such as where it convicts a defendant for the charged crime based upon evidence that the defendant committed another crime, this court must rectify the violation.
In sum, the defendant’s conviction for felony murder was unsupported by substantial competent evidence and should be reversed.
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