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NOT DESIGNATED FOR PUBLICATION

No. 121,450

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

K'VEION DARNELL RICHARD,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed September 10, 

2021. Affirmed in part, reversed in part, and vacated in part.

Kirsten B. Patty, of Wichita, for appellant. 

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before ATCHESON, P.J., GARDNER and WARNER, JJ.

ATCHESON, J.: This case arises from a home invasion in southwest Wichita. Three 

armed invaders were met with like force from one of the residents who emptied the 

seven-shot magazine of his pistol. In the gun battle, each of the intruders was hit, and the 

resident suffered what turned out to be a comparatively minor leg wound. Another 

resident immediately called 911 to report the incident, and a third resident described the 

getaway car to the responding law enforcement officers as a dark colored sedan. 
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Within minutes of the call, a dark colored Cadillac sped up to the emergency room 

of a Wichita hospital, deposited three men at the entrance, and drove away. Exterior 

security cameras at the hospital recorded their arrival. Each of the three, including 

Defendant K'veion Darnell Richard, had gunshot wounds. Richard had been shot in the 

face. In the emergency room, Richard offered investigating police officers conflicting 

accounts of how he had been shot and who brought him to the hospital.

The Sedgwick County District Attorney's office charged Richard with aggravated 

battery, aggravated burglary, two counts of aggravated assault, and two counts of 

criminal discharge of a firearm at an occupied dwelling. A jury heard evidence in the case 

in mid-November 2018. Richard did not testify during the trial. The jurors convicted him

on all of the charges except aggravated battery; they could not reach a verdict on that 

charge. The district court later sentenced Richard to a controlling term of 56 months in 

prison for the aggravated burglary with a 36-month period of postrelease supervision, 

reflecting a midrange guidelines punishment. The district court imposed a guidelines 

sentence of 12 months in prison on each of the convictions for aggravated assault and 

criminal discharge of a firearm and ordered Richard to serve all four concurrently but 

consecutive to the 56-month sentence.

Richard has appealed and raises two issues: (1) the sufficiency of the evidence to 

support one of the convictions for criminal discharge of a firearm; and (2) the district 

court's decision to admit evidence of a trespass that occurred at the residence the night 

before the armed intrusion. As to the first, we find Richard's point well-taken and reverse

that conviction. As to the second, we assume the district court erroneously admitted the 

evidence, but the error was harmless. Before we detail our analysis, we add some 

additional facts.

The armed incursion happened at a mobile home community on August 21, 2017, 

between 11 p.m. and midnight. The four occupants of the residence had retired for the 
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night, so the mobile home was dark inside. Two adult men had their own bedrooms, and 

a newly married couple had the third bedroom closest to the front door of the residence. 

The single man with the rearmost bedroom remained there throughout the brief intrusion 

and gun battle. The other single man heard knocking at the door, and when he undid the 

latch, three men pushed their way in. When the husband and wife heard a commotion, he 

crossed the threshold of the bedroom and fired his pistol. His wife saw some of what 

happened.

Because the house was dark, none of the occupants could positively identify any 

of the intruders. They described the three as young Black men wearing hoodies and other 

dark clothing. One of the intruders carried a .22 caliber assault-style rifle; one or both of 

the others had handguns. The residents believed Richard had the rifle, based on his 

general appearance and build.

The residents also believe one of the intruders fired the first shot, but everyone 

who was armed may have discharged a firearm inside the home. When the man with the 

rifle was shot, he dropped the gun and left it behind. The residents estimated the 

encounter lasted less than a minute. The occupant of the rear bedroom saw the gunmen 

flee and provided the general description of the getaway vehicle to the responding 

officers from the Wichita Police Department.

Crime scene investigators found five .45 caliber shell casings—from three 

manufacturers—outside the mobile home. They found two spent .22 caliber shell casings 

in the living room, and a third had jammed in the rifle. There were seven .45 caliber shell 

casings roughly at the bedroom door and a single .45 caliber casing in the living room 

area. The investigators identified what appeared to be numerous bullet holes in the 

mobile home.
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The investigators determined that a bullet went through an exterior wall of the 

residence and penetrated the back wall of a mobile home on the lot immediately to the 

rear. The occupant of that mobile home heard the gunshots and called 911. He later 

described fearing for his family's safety and getting his wife and stepchildren on the floor. 

Criminal Discharge of a Firearm

The jury convicted Richard of two counts of criminal discharge of a firearm, a 

felony violation of K.S.A. 2020 Supp. 21-6308(a)(1)(A) that, in pertinent part, 

criminalizes the "[r]eckless and unauthorized discharge of any firearm . . . [a]t a dwelling 

. . . in which there is a human being." One count pertained to the bullet that struck the 

nearby mobile home; Richard has not disputed that conviction on appeal.

Richard contends insufficient evidence supports the other conviction. On appeal, 

the State has offered alternative theories for that charge based either on Richard firing the 

rifle in the mobile home or on shots fired at the mobile home after the intruders left the 

premises in flight. The latter would impute criminal liability to Richard as an aider and 

abettor.

In reviewing a sufficiency challenge, we construe the evidence in a light most 

favorable to the party prevailing in the district court, here the State, and in support of the 

jury's verdict. An appellate court will neither reweigh the evidence generally nor make 

credibility determinations specifically. State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d 

72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416 P.3d 116 (2018); State v. Pham, 

281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is whether rational 

jurors could have found the defendant guilty beyond a reasonable doubt. Butler, 307 Kan. 

at 844-45; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
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As to the first theory, Richard contends he could not be convicted of criminal 

discharge of a firearm for shooting the rifle in the mobile home because the statute 

proscribes shooting at a dwelling. The district court identified one of the elements of the 

crime in the jury instructions as: "The defendant discharged a firearm at a dwelling." The 

adequacy of the instruction itself is not at issue, since it conforms to the statutory 

language. The question is whether the evidence satisfied the statutory requirements of 

K.S.A. 2020 Supp. 21-6308(a)(1)(A). 

We recently outlined the principles governing statutory review:

"When reviewing a statute, an appellate court must, as a first priority, strive to honor the 

legislative intent and purpose. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 

(2014). The court should look to the words of the statute to discern that intent and 

purpose. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725, 317 P.3d 70 (2014). 

Absent some specialized statutory definition, the words of a statute typically should be 

given their ordinary meaning. Midwest Crane & Rigging, LLC v. Kansas Corporation 

Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017). And dictionaries (not surprisingly) 

supply those meanings. 306 Kan. at 851. Consistent with the statutory language, criminal 

statutes should be construed strictly against the State and in favor of the accused. State v. 

Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012); State v. Bannon, 55 Kan. App. 2d 259, 

265, 411 P.3d 1236 (2018)." State v. Baumgarner, 59 Kan. App. 2d 330, 334-35, 481 

P.3d 170, rev. denied 313 Kan. ___ (April 23, 2021).

See State v. Smith, 309 Kan. 929, 932-33, 441 P.3d 472 (2019).

Richard's argument pivots on the meaning of the word "at," as used in the statute. 

"At" is a preposition of protean definition. The word can mean "on" or "in" in reference 

to a location. Webster's New World College Dictionary 89 (5th ed. 2014) ("at" definition 

1). For example, one might say, "I met him at the candy store." Morton, Barry, and 

Greenwich, "Leader of the Pack," Red Bird Records R.B. 10-014 (1964). That would 

mean inside the store or, perhaps, on the sidewalk at the entrance and would favor the 
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State's theory here. But "at" can also mean "to or toward as the . . . object," as in "don't 

shout at me." Webster's New World College Dictionary 89 (5th ed. 2014) ("at" definition 

2). That definition would preclude the State's theory based on the discharge of the rifle 

inside the dwelling. The statutory language could mean either or both. The criminal code 

offers no specialized definition of "at" to be used in K.S.A. 2020 Supp. 21-6308 or 

elsewhere. To that extent, K.S.A. 2020 Supp. 21-6308(a)(1)(A) is ambiguous on its face. 

Had the Legislature intended the State's meaning, we suppose it would have used 

the more precise preposition "in." But that narrow meaning would exclude drive-by 

shootings where a firearm is discharged into a dwelling from a passing car. And it would 

preclude prosecution when the shooter stands across the street or at some greater distance 

from the dwelling. We doubt the Legislature intended to criminalize such a constrained 

range of conduct. More naturally, shooting a weapon "at" something conveys the idea 

that the something is a target or object of the action. Had the Legislature intended to 

cover both, it easily could have identified the wrongful conduct as discharging a firearm 

at or in a dwelling. But it didn't. We should avoid adding something to a statute or 

negating something already there. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 

(2006) (statute should not be read to add language not found there); see also Baumgarner, 

59 Kan. App. 2d at 335.

So with K.S.A. 2020 Supp. 21-6308(a)(1)(A), we have a criminal statute ripe with 

ambiguity on the critical issue in Richard's prosecution. In that circumstance, we are to 

apply the rule of lenity and give the ambiguous language a reasonable reading to the 

defendant's benefit. State v. Gales, 312 Kan. 475, 485, 476 P.3d 412 (2020); State v. 

Baker, 56 Kan. App. 2d 335, Syl. ¶ 3, 429 P.3d 240 (2018) ("The rule of lenity requires 

that language in criminal statutes open to more than one reasonable interpretation be 

applied to the defendant's advantage."). The rule of lenity undercuts the State's 

prosecution of Richard for criminal discharge of a firearm for shooting the rifle inside the 

residence.
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Our conclusion is consistent with State v. Farmer, 285 Kan. 541, 546, 175 P.3d 

221 (2008), in which the court recognized that K.S.A. 21-4219(b), a predecessor to 

K.S.A. 2020 Supp. 21-6308 that also criminalized "discharge of a firearm at an occupied 

dwelling," was "created to impose criminal liability where an individual discharges a 

firearm into an occupied building or vehicle." Although Farmer involved a defendant 

who shot at an occupied vehicle, the court's discussion of the identical statutory language 

bears on and bolsters Richard's argument here. 

On appeal, the State alternatively suggests Richard could be convicted of criminal 

discharge of a firearm as an aider and abettor for the shots apparently fired from outside 

the residence, as evidenced by the .45 caliber shell casings found there. In K.S.A. 2020 

Supp. 21-5210, the Legislature has codified two forms of aiding and abetting to extend 

liability to persons who do not directly participate in the charged crime. The statute, in 

pertinent part, provides:

"(a) A person is criminally responsible for a crime committed by another if such 

person, acting with the mental culpability required for the commission thereof, advises, 

hires, counsels or procures the other to commit the crime or intentionally aids the other in 

committing the conduct constituting the crime.

"(b) A person liable under subsection (a) is also liable for any other crime 

committed in pursuance of the intended crime if reasonably foreseeable by such person as 

a probable consequence of committing or attempting to commit the crime intended." 

K.S.A. 2020 Supp. 21-5210(a), (b).

Under paragraph (a), an individual may be liable for advising, hiring, or otherwise 

aiding someone else in committing a crime. For example, persons standing lookout for 

their criminal compatriots or serving as getaway drivers are guilty as aiders and abettors 

under Kansas law. See State v. Gleason, 277 Kan. 624, 634-35, 88 P.3d 218 (2004)

(lookout); State v. Burton, 35 Kan. App. 2d 876, 880-81, 136 P.3d 945 (2006) (getaway 
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driver). Paragraph (b) imposes liability in a different way: A person joining with others 

to carry out a crime is also legally responsible for any additional crimes foreseeably 

committed during the illicit enterprise. See State v. Boyd, 46 Kan. App. 2d 945, 956-57, 

268 P.3d 1210 (2011) (discussing comparable language in K.S.A. 21-3205, predecessor 

to K.S.A. 2020 Supp. 21-5210), overruled on other grounds by State v. Betancourt, 299 

Kan. 131, 322 P.3d 353 [2014]). The pattern jury instruction on aiding and abetting 

liability incorporates the statutory language on each theory largely verbatim as separate 

paragraphs to be used as may be appropriate in a given case. PIK Crim. 4th 52.140 (2020 

Supp.). 

Here, the district court instructed the jurors: "A person is criminally responsible 

for a crime if the person, either before or during [its] commission, and with the mental 

culpability required to commit the crime intentionally aids another to commit the crime." 

The instruction conforms to language in PIK Crim. 4th 52.140 and draws directly on the 

theory of aiding and abetting liability outlined in K.S.A. 2020 Supp. 21-5210(a). In this 

case, the instruction applied to each charged crime the jury considered. At the 

streamlined on-the-record instruction conference, the State indicated it requested the 

limited version of PIK Crim. 4th 52.140 the district court intended to give and agreed to 

the instruction without reservation. Accordingly, the State elected to proceed on that 

theory of aiding and abetting liability.

The evidence established Richard discarded the rifle in the dwelling after he was 

shot and began to retreat. The shell casings outside correspond to shots his partners in 

crime fired during their flight, presumably to keep the armed resident at bay. There is no 

evidence to suggest the intruders fired shots into the dwelling as they entered. All of the 

evidence is to the contrary. 

Richard—injured, disarmed, and fleeing—could not have aided the other two in 

discharging their firearms into the dwelling as all three retreated. Richard was, at most, 
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associated with them when they committed that crime, an affiliation that is not enough to 

support aiding and abetting on the State's theory. See State v. Llamas, 298 Kan. 246, 260, 

311 P.3d 399 (2013). The jury instruction conformed to that principle of criminal liability 

and the recommendation in Llamas that the "better practice" is to so instruct jurors. 298 

Kan. at 261-62. The evidence, then, did not support convicting Richard on the State's 

aiding and abetting theory.

The State did not pursue an aiding and abetting theory based on Richard's 

participation in the aggravated burglary when he entered the residence with his cohorts 

and, thus, aided or otherwise participated in that crime. Under the principle of criminal 

liability codified in K.S.A. 2020 Supp. 21-5210(b), Richard, in turn, could have been

liable for the others' criminal conduct in shooting at the residence as they fled as a 

"reasonably foreseeable . . . consequence" of the burglary. We cannot appropriate a 

theory never submitted to the jury to uphold a conviction, since we would be substituting 

our judgment for whatever the jury might have decided to find a defendant guilty. See 

State v. Watt, No. 121,266, 2020 WL7413773, at *4 (Kan. App. 2020) (unpublished 

opinion); accord Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 

182 (1993) (A criminal defendant's right to jury trial guaranteed in the Sixth Amendment 

to the United States Constitution "includes, of course, as its most important element, the 

right to have the jury, rather than the judge, reach the requisite finding of 'guilty.'"). 

We, therefore, conclude the State presented insufficient evidence to support one of 

Richard's convictions for criminal discharge of a firearm. The appropriate remedy 

requires we reverse that conviction, vacate the corresponding sentence, and enter a 

judgment of acquittal on the charge. See Baumgarner, 59 Kan. App. 2d at 341. Because 

of the concurrent sentences the district court imposed on Richard, we need not remand 

for resentencing or any other purpose. 
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District Court's Evidentiary Ruling

During the evening of August 20, 2017—the day before the armed invasion—

three Black men entered the mobile home through the unlocked front door. The husband 

and wife interceded, and the trio quickly left. Before the trial, the State requested an order 

from the district court to admit testimony about the August 20 entry and represented that 

the husband and wife could make positive identifications of Richard as having been one 

of the three people and would testify the intruder carrying the rife on August 21 had the 

same general appearance and build as Richard. On that basis, the district court granted the 

State's request. The State's proffer probably established a foundation to admit the August 

20 entry under K.S.A. 2020 Supp. 60-455(b) as evidence of Richard's identity—the 

linchpin issue—and possibly of a common scheme or plan and preparation.

In their trial testimony, however, neither the husband nor the wife could say that 

Richard entered their residence on August 20 or on August 21. They disclaimed getting a 

good look at the facial features of any of the men who came in either day. All they could 

tell the jurors was several young Black men entered the house without permission on 

August 20, a man with the same general appearance and size as one of them forced his 

way in the next night along with two other intruders, and Richard was of the same race 

and of a similar age and physique. We believe that trial testimony was sufficiently 

indefinite to call into question the August 20 incident as admissible evidence tending to 

prove Richard's participation in the August 21 home invasion. See State v. Boysaw, 309 

Kan. 526, 541, 439 P.3d 909 (2019) (In weighing the admissibility of evidence under 

K.S.A. 60-455, the district court should consider, among other factors, the clarity of proof 

of the other crime or civil wrong to be introduced and how probative it may be of the 

material issue.).

Here, the material issue was the identity of Richard as one of the August 21 home 

invaders. The State assembled circumstantial evidence supporting his participation, even 
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though none of the residents could make an in-court eyewitness identification of Richard 

as one of the gunmen. Richard did bear a general physical resemblance to one of the three 

intruders. At least two of the intruders were shot and a few minutes later, a car deposited 

three men with gunshot wounds at a local hospital. The car matched the description of the 

getaway vehicle. Richard immediately gave demonstrably inconsistent accounts to police 

as to how he was shot. See United States v. Stoney End of Horn, 829 F.3d 681, 687 (8th 

Cir. 2016) (defendant's inconsistent explanations for otherwise inculpatory circumstances 

are themselves indicative of guilt); State v. Yoksh, 989 S.W.2d 227, 233 (Mo. Ct. App. 

1999) (shifting explanations evidence of plan to conceal guilt); Sumpter v. State, No. 

117,732, 2019 WL 257974, at *9 (Kan. App.) (unpublished opinion) (demonstrably false 

exculpatory statement constitutes evidence tending to establish guilt), rev. denied 310

Kan. 1071 (2019).

All of that evidence also tends to suggest Richard might have been one of the three 

unidentified men who entered the mobile home without permission on August 20. But 

whether Richard did so is not itself a material issue in the case, since he faced no criminal 

charges for the August 20 incident. Conversely, evidence that an unidentified young 

Black man who was similar in appearance to Richard barged into the residence on August 

20 is not really probative of who invaded the premises the next day or, more particularly, 

that Richard did. In short, the inexact evidence about who participated in the August 20 

entry may well render the incident irrelevant in the sense the information makes it neither 

more likely true nor less likely true that Richard joined in the August 21 home invasion. 

See State v. Davis, 312 Kan. 259, 276, 474 P.3d 722 (2020); City of Leawood v. 

Puccinelli, 56 Kan. App. 2d 108, 118, 424 P.3d 560 (2018); State v. Otero, No. 114,762, 

2017 WL 4183208, at *6 (Kan. App. 2017) (unpublished opinion) ("Relevant evidence 

makes a disputed, material fact either more likely or less likely true.").

Without a firm eyewitness identification of Richard as one of the men entering the 

mobile home on August 20, the incident seems to lack the clarity and probativeness, as 
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outlined in Boysaw, to be admitted as 60-455 evidence of identity of any of the 

participants in the armed invasion the next night. Rather, the evidence from August 21 

tends to show Richard was there on August 20—not the other way around. We, therefore, 

assume without deciding the district court erred in permitting the jury to consider 

testimony about the August 20 incident. 

The question remains, however, whether the assumed error in admitting that 

evidence substantially prejudiced Richard. State v. Claerhout, 310 Kan. 924, 931, 453 

P.3d 855 (2019) (admission of 60-455 evidence subject to review for harmless error). 

Because any error undercuts a statutory right of Richard, the State, as the benefited party, 

must demonstrate there is no reasonable probability the wrongfully admitted evidence 

affected the outcome of the trial in light of the record as a whole. State v. McCullough, 

293 Kan. 970, 981-82, 270 P.3d 1142 (2012); State v. Brown, 58 Kan. App. 2d 599, 617, 

473 P.3d 910 (2020). 

Here, we have little difficulty concluding any evidentiary error to be harmless 

precisely because the circumstances of the August 20 incident are irrelevant to proving

Richard's identity as one of the gunmen and, hence, his guilt or innocence. The trial 

testimony from the husband and wife about the August 20 entry neither advanced the 

State's proof that Richard participated in the August 21 armed intrusion nor impaired 

Richard's defense. That testimony may appropriately be characterized as inconsequential 

on the crucial point—Richard's identity—and added nothing substantive to the 

circumstantial evidence properly admitted based on what happened on August 21 at both 

the residence and the hospital. We have no doubt the jury would have come to the same

conclusions had the district court disallowed the testimony.

Having considered both points Richard has raised, we reverse his conviction for 

one count of criminal discharge of a firearm, vacate that sentence, and enter a judgment 

of acquittal on that charge. We otherwise affirm Richard's convictions and sentences.
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Affirmed in part, reversed in part, and vacated in part.