concurring in part and dissenting in part: I agree with the majority that, in theory, convictions for felony murder and discharge of a firearm at an occupied vehicle are not multiplicitous. I also agree that defendant Darrell L. Farmer’s confession was
*556voluntary, and that the district judge properly determined his criminal history score.
I disagree with the majority’s analysis and result on Farmer’s sufficiency claim. It is painfully obvious that the State pursued a first-degree felony-murder theory that the undisputed facts of this case could not support—“obvious” because there is zero evidence that Farmer shot at the vehicle in which DeAundrey Neal happened to be sitting rather than at Neal himself; “painfully” because the prosecution’s mistake requires reversal of both the firearm conviction and the necessarily dependent felony-murder conviction, despite ample evidence that Farmer killed Neal in cold blood.
I understand—and rue—the bitterness of this pill. Nevertheless, I am persuaded that the statute compels us to swallow it.
The crime at issue requires “discharge of a firearm at an occupied . . . motor vehicle.” K.S.A. 2006 Supp. 21-4219(b). The phrase, “at [a] . . . motor vehicle,” does not look or sound ambiguous to me. Shooting at a motor vehicle is one thing; shooting at a person is something else. Regardless of whether the State’s or the defendant’s version of events is relied upon here, Farmer shot only at Neal. Evidence of where Farmer may have been standing when he fired, of where Neal may have been sitting when he was hit, or of where two shell casings may have fallen after being ejected from Farmer’s weapon, is interesting but not determinative.
Even assuming that “at [a] . . . motor vehicle,” as used in the statute, is ambiguous, I still cannot reach the majority’s result. The available legislative history, as our Court of Appeals has previously recognized in cases involving discharge of a firearm at an occupied dwelling, demonstrates that the crime defined by K.S.A. 21-4219(b) was intended to cover malicious and willful acts of shooting into occupied spaces that did not fit under other felony statutes. See State v. Taylor, 25 Kan. App. 2d 407, 419-20, 965 P.2d 834 (1998); State v. Caldwell, 21 Kan. App. 2d 466, 468, 901 P.2d 35, rev. denied 258 Kan. 860 (1995). The new crime was designed to address
“the situation when aggravated assault and aggravated battery fail[] to cover the act. Malicious and willful shooting at an occupied building or vehicle, but where *557the individual is not placed in immediate apprehension of bodily harm, is a class D felony. This is the same class of felony as aggravated assault and will cover the situation where aggravated assault would fail. The willful and malicious shooting at an occupied building or vehicle which results in bodily injury is a class C felony. This is the same class felony as aggravated batteiy and will cover those situations where the requisite intent to injure, required for battery, cannot be shown.” Report of Subcommittee, House Judiciary Committee on Drive-by Shooting (H.B. 2709), February 25, 1992.
As the Court of Appeals wrote,
“[t]he [legislative] subcommittee’s objective was to fill the gaps in the law prohibiting the full prosecution of drive-by shootings. . . .
“In a situation where the defendant announced his presence and intent to [do] harm to the occupants of the building prior to discharging gunfire into the building, and all those within the building heard and appreciated the danger, full prosecution of the crime was possible by charging aggravated assault as to each occupant who was not injured and aggravated battery as to each occupant who was injured in the gunfire. Where, however, the defendant discharged a firearm into an occupied building b.ut no occupant was aware of the threat prior to the gunfire, no one was injured, and the property damage was negligible, the law as it existed prior to the enactment of the drive-by shooting statute limited the State to charging misdemeanor criminal damage to property, which was clearly insufficient as a punishment or as a deterrent. The drive-by shooting statute filled this gap in tire law by establishing a felony statute prohibiting the wanton and willful act itself without regard to the state of mind of the shooter, the victims, or the amount of property damage.” Taylor, 25 Kan. App. 2d at 420-21.
In other words, the statute had a specific purpose. It was not intended to capture and cannot capture conduct punishable as a felony because it already fit the definition of aggravated assault or aggravated battery.
Here, again, Farmer shot only at Neal. This dictated particular legally viable charging options for the State. It could have pursued Farmer s conviction on first-degree felony murder based on aggravated batteiy, either because Neal was ldlled during the commission of Farmer’s act of intentionally causing great bodily harm under K.S.A. 21-3414(a)(l)(A) or because Neal was killed during the commission of Farmer’s act of intentionally causing bodily harm with a deadly weapon under K.S.A. 21-3414(a)(l)(B). Additionally or alternatively, it could have pursued Farmer’s conviction on first-degree premeditated murder.
*558Instead, the State chose none of the above—perhaps in part to avoid application of the merger doctrine to felony murder and aggravated battery, perhaps in part to avoid the higher evidentiary burden of proving premeditation by a PCP-using defendant. It matters not. This court should not be in the business of correcting for the State’s charging choice, whether it grew out of strategic miscalculation or mere mistake. Ample precedent from this court and our Court of Appeals supports the limited role of an appellate court in such a situation. See State v. Dickson, 275 Kan. 683, 693-95, 69 P.3d 549 (2003) (conviction reversed without remand for new trial where evidence proved violation of subsection of statute different from one charged); State v. Schad, 247 Kan. 242, 244-47, 795 P.2d 406 (1990) (conviction reversed without remand, where evidence could have supported other charges but was insufficient to establish crime charged); State v. Houck, 240 Kan. 130, 135-36, 727 P.2d 460 (1986) (conviction reversed without remand, where evidence did not support conviction of offense charged; “accused cannot be found guilty of some other offense which State did not see fit to charge”); State v. Stewart, 31 Kan. App. 2d 357, 65 P.3d 555 (2003) (conviction reversed without remand; where evidence insufficient; defendant’s unlawful actions did not conform to crime charged); State v. Robinson, 27 Kan. App. 2d 724, 8 P.3d 51 (2000) (conviction reversed without remand on sufficiency claim; prosecution proved one theory of crime but instructed jury on other theory).
Given all of the above, I would reverse Farmer’s convictions on criminal discharge of a firearm into an occupied motor vehicle and on felony murder.
Johnson, J., joins in the foregoing concurring and dissenting opinion.