Green, J.:
Daniel L. Calhoun appeals the trial courts denial of his K.S.A. 60-1507 motion following a preliminary hearing. On appeal, Calhoun argues that the trial courts judgment denying his K.S.A. 60-1507 motion was erroneous. Calhoun contends that he was entitled to a new trial on his nine felony convictions based on trial errors, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. Of Calhouns many issues, we find only one has merit: that his trial and appellate counsel provided ineffective assistance that resulted in prejudice because they did not challenge the giving of an aiding and abetting foreseeability instruction. The giving of the aiding and abetting foreseeability instruction with specific intent crimes directly contradicts our Supreme Courts holding in State v. Overstreet , 288 Kan. 1, 12-13, 200 P.3d 427 (2009). Because the motion, files, and records of Calhouns case show that Calhoun suffered prejudice based on his counsels failures with regard to his aggravated kidnapping, attempted voluntary manslaughter, and criminal threat convictions, we reverse those convictions and remand for a new trial. Accordingly, we affirm in part, reverse in part, and remand.
Calhouns Underlying Criminal Case
A jury convicted Calhoun of aggravated kidnapping, aggravated criminal sodomy, attempted voluntary manslaughter, aggravated burglary, criminal threat, two counts of aggravated robbery, and two counts of aggravated battery. Calhouns attempted voluntary manslaughter conviction was the lesser included offense of attempted intentional second-degree murder. The jury also acquitted Calhoun of rape and three counts of aggravated criminal sodomy.
The trial court instructed the jury that they could convict Calhoun if they believed he was either the principal or an aider or abettor in the commission of the crimes. The aiding and abetting jury instruction included language that told the jury it could convict Calhoun of any of the crimes even if he was not the principal, so long as they believed that the crimes were a reasonably foreseeable consequence of the intended crime. Calhouns three accomplices in commission of the crimes were Christopher Thompson, Isaac Little, and M.D. M.D., who was a minor when he committed the crimes, became a States witness.
The evidence at Calhouns trial established that Calhoun, Thompson, Little, and M.D. broke into the house of Javier and his common-law wife, S.E.C., in the early morning hours of May 16, 2009; Javier and S.E.C.s three young children were also at home during the break-in. Javier had opened the front door to his house because he heard loud knocking. When he opened the door, there was a man with a gun. During the terror that ensued that morning, the following happened.
One of the men, who was carrying a loaded gun, forced both Javier and S.E.C. to get on the floor on their knees and demanded that they give him their money. When Javier and S.E.C. told them that they had no money, the man then picked up Javier and S.E.C.s nine-month-old son, threatening to kill their baby while pointing the gun at his head. At different points, the men repeatedly kicked Javier and stomped on his head. And, by the time the men had fled Javier and S.E.C.s house, Javier had been shot multiple times, including in the left knee, the right knee, and twice in the chest. The men also sexually assaulted S.E.C. S.E.C. testified that she was vaginally raped once, anally sodomized once, and forced to perform oral sex three times. In addition, S.E.C. was physically beaten. At one point, the man with the gun forced the gun down S.E.C.s throat, threatening to kill S.E.C. if she did not comply with his commands. In the end, the men left Javier and S.E.C.s house after gathering what valuables they could find.
S.E.C. admitted it was difficult to identify the men. The men were wearing bandanas or shirts over their faces. Yet, S.E.C. consistently asserted that three of the men sexually assaulted her while the other man with the gun did not. S.E.C. identified Calhoun as one of the men that sexually assaulted her, although she also explained to a detective that she was not a hundred percent certain who did what to her because she was not looking at them.
She also believed that the man who shot Javier was in charge since he was giving orders to the other three people. S.E.C. testified that she heard one of the men yell stop shooting when she was being led from the garage to the bathroom, which was right before she saw the gunman shoot Javier three times. Javier alleged that the man with the gun stayed with him the entire time. He further alleged that this man was the man who threatened his infant son and the only man who shot him. He did, however, allege that Calhoun stomped on him after he started fighting back against the gunman.
Calhoun, who testified on his own behalf, admitted that he was at Javier and S.E.C.s house with Thompson, Little, and M.D. Calhoun testified that he and the other men planned to rob Javier at his house because Javier sold marijuana from his garage. It is an undisputed fact that Javier had previously sold marijuana from out of his garage and had previously sold marijuana to Calhoun. Calhoun explained that when Thompson asked where he could buy some marijuana, he directed Thompson to Javiers house. Furthermore, on the way to Javiers house, they decided to rob Javier. Calhoun admitted that he participated in the robbery, entered into Javier and S.E.C.s house, and collected any valuable items he could find.
Still, Calhoun denied committing any of the violent crimes against Javier, S.E.C., or the baby. He even asserted that he tried to prevent the other men from committing the violent crimes against Javier, S.E.C., and the baby. Calhoun asserted that Little was the only person with a gun and the only person who shot Javier. He alleged that at one point, when he came into the kitchen to find that Little had shot Javier, he tried to physically stop [Little] from shootin[g] and told Little dont shoot [Javier] ... hes already bleedin[g].
M.D. testified that Calhoun was an active participant in the sexual assaults of S.E.C. He alleged that Calhoun told him to rape her, tied her hands up with a vacuum cord, and removed her clothing. M.D. testified that Calhoun punched Javier in the head when Javier somehow gained access to Littles gun. Nevertheless, M.D. testified that Little was the only one who shot Javier.
After his trial, Calhoun obtained new counsel. Calhoun then moved for a new trial, alleging that his jury engaged in misconduct and entered a compromised verdict on the aggravated criminal sodomy conviction. Calhouns arguments were based on statements by a juror, B.R., who wrote a letter to the judge after his trial suggesting remorse for convicting him of aggravated criminal sodomy.
B.R. stated that during deliberations about half of the jury felt he was guilty of all the sex crimes and about half of the jury felt he was guilty of none of the sex crimes. She stated that the jury decided to acquit Calhoun of the rape and all but one of the aggravated criminal sodomies, despite understanding the aiding and abetting instruction requiring the jury to find him guilty of all the crimes anyway simply because he was there, because (1) the jury did not want a hung verdict and (2) one juror had a planned trip the upcoming week. She explained that she finally agreed to find Calhoun guilty of a single count of aggravated criminal sodomy after thinking of the law which [said] that [Calhoun was] guilty of all [the] crimes anyway simply because he was there. Eventually, another juror, D.M., came forward with a similar account of the jury deliberations. D.M. explained she ultimately agreed to find Calhoun guilty of the single aggravated criminal sodomy because her "take on the law [was] that, if you are [a willful] participant in the unlawful venture, whether you are the look-out or youre the guy who pulled the trigger; youre just as guilty of the [attempted] murder ... thats it.
The trial court rejected Calhouns new trial argument. The trial court compared Calhouns case to State v. Kaiser , 260 Kan. 235, 249-52, 918 P.2d 629 (1996), disapproved on other grounds by State v. Gonzalez , 282 Kan. 73, 145 P.3d 18 (2006), and relied on K.S.A. 60-441, which prohibits courts from considering the jurys mental process when reviewing the validity of a verdict. The trial court then sentenced Calhoun to a controlling prison term of 330 months followed by lifetime postrelease supervision. The trial court ran Calhouns aggravated kidnapping and aggravated criminal sodomy sentences concurrent, but ran his remaining sentences consecutive. Calhoun appealed his convictions and sentences to this court.
Calhouns Direct Appeal
On direct appeal, Calhoun made the following arguments: (1) that the trial court lacked subject matter jurisdiction because the State failed to charge him with aiding and abetting as a separate crime in the complaint; (2) that the aiding and abetting instruction created alternative means for committing crimes, meaning insufficient evidence supported all but his aggravated burglary convictions because he was not a principal actor in the commission of the other crimes; (3) that the trial court provided the jury with an erroneous definition of sodomy that created alternative means for the commission of the crime of aggravated criminal sodomy; (4) that the judge committed misconduct by calling S.E.C. a victim while explaining the jury instructions; (5) that the prosecutor committed misconduct during closing arguments by misstating the law; and (6) that cumulative error otherwise required the reversal of his convictions.
This court rejected each of Calhouns arguments on the merits. State v. Calhoun , No. 107,116, 2013 WL 2991066 (Kan. App. 2013) ( Calhoun I ), rev. denied 299 Kan. 1271 (2014). After our Supreme Court denied Calhouns petition for review, the mandate was issued on May 30, 2014.
Calhouns K.S.A. 60-1507 Motion
On May 29, 2015, Calhoun filed a pro se K.S.A. 60-1507 motion with the trial court. In this motion, Calhoun argued that he was entitled to relief because of numerous trial errors, including: (1) that the trial court failed to properly instruct the jury on aiding and abetting; (2) that the trial court failed to properly instruct the jury on the role of hearsay evidence; (3) that the amended complaint charged him with simple kidnapping as opposed to aggravated kidnapping; (4) that his conviction for the crime of attempted voluntary manslaughter under a theory of aiding or abetting was a legal impossibility; (5) that his conviction for aggravated criminal sodomy was multiplicitous; (6) that his conviction for aggravated criminal sodomy was supported by insufficient evidence; (7) that his conviction for aggravated kidnapping was supported by insufficient evidence; (8) that his conviction for aggravated burglary was supported by insufficient evidence; and (9) that the prosecutor committed error several times.
Calhouns primary complaint concerned the trial courts failure to instruct the jury that he must have had the same specific intent to commit the crime as the principal to be convicted of his specific intent crimes under a theory of aiding and abetting. Calhoun alleged our Supreme Courts decision in Overstreet directed this. Additionally, Calhoun asserted that both his trial counsel and appellate counsel were ineffective for failing to raise the preceding trial errors. Calhoun also asserted that his trial counsel was ineffective for failing to stipulate to the uncontested facts (i.e. rape, sodomies, shooting, etc.), locate witnesses to discuss Javiers drug business, and sequester certain State witnesses. Calhoun concluded by stating that there [were] several other instances of ineffective assistance of counsel that [would] have to be added to this issue at the hearing on the motion.
On October 7, 2015, the trial court appointed counsel to represent Calhoun on his K.S.A. 60-1507 motion. On February 5, 2016, Calhouns counsel filed a pretrial questionnaire in which he merely incorporated Calhouns pro se arguments by reference. Calhouns counsel never filed a motion expounding on or clarifying Calhouns arguments, which he made in his pro se K.S.A. 60-1507 motion.
On May 13, 2016, the State responded that the trial court should deny Calhouns motion without holding an evidentiary hearing because the motion, files, and records of Calhouns case definitively established that he was not entitled to relief. The State argued that to the extent that Calhoun was arguing about trial errors, he was barred from making such arguments in the context of his K.S.A. 60-1507 motion. As for his ineffective assistance of counsel arguments, the State provided an indepth analysis why each of Calhouns arguments were legally incorrect, factually incorrect, or otherwise controlled by this courts decision in Calhoun I . After the States response, Calhoun moved to amend his K.S.A. 60-1507 motion to add the claim that [a]ppellate [c]ounsel was ineffective for failing to raise the issue of juror misconduct and a compromise[d] verdict in [his] direct appeal. Calhoun noted that in his original and timely K.S.A. 60-1507 motion he had stated that there [were] several other instances of ineffective assistance of counsel that [would] have to be added to this issue at the hearing on the motion. Calhoun asserted that his latest argument either relate[d] back to the catch-all ineffective assistance argument in Calhouns K.S.A. 60-1507 motion or that the court should allow the amendment to prevent manifest injustice.
The trial court held a preliminary hearing on Calhouns motions, where Calhoun appeared through counsel, but not in person. In addition to repeating Calhouns earlier arguments, counsel also asserted that the court should allow Calhoun to raise some of his trial error arguments based on exceptional circumstances. The State stood on its written motion in response to Calhouns original K.S.A. 60-1507 motion, while also arguing that Calhoun had failed to establish he had a right to amend his K.S.A. 60-1507 motion either because the amendment related back to his timely motion or because of manifest injustice.
The trial court ultimately denied Calhouns motions. In rejecting Calhouns argument that his amendment related back or was permissible because of manifest justice, the trial court noted that Calhoun had cited no authority to support his arguments. It also noted that it knew of no authority allowing a K.S.A. 60-1507 movant to reserve the right to add something later. The court additionally rejected the argument that there were any exceptional circumstances in Calhouns case requiring its consideration of Calhouns other arguments. The trial court explained that it viewed the exceptional circumstances argument as an attempt to orally amend the motion, and it would not allow any further amendment to the original motion. Concerning the arguments Calhoun raised in his timely K.S.A. 60-1507 motion, the trial court adopted the States response in its entirety.
Did the Trial Court Err by Denying Calhouns K.S.A. 60-1507 Motion?
Applicable Law
When the trial court denies a K.S.A. 60-1057 motion based upon the motion, files, and records of the case following a preliminary hearing, appellate courts are in the same position as the trial court to consider the merits of the K.S.A. 60-1507 motion; therefore, appellate courts exercise de novo review. Grossman v. State , 300 Kan. 1058, 1061, 337 P.3d 687 (2014).
To be entitled to an evidentiary hearing, a K.S.A. 60-1507 movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record. 300 Kan. at 1062, 337 P.3d 687 (quoting Sola-Morales v. State , 300 Kan. 875, Syl. ¶ 3, 335 P.3d 1162 [2014] ). Once movants meet this burden, they are entitled to an evidentiary hearing on the motion unless their motion is successive. Grossman , 300 Kan. at 1062, 337 P.3d 687.
K.S.A. 60-1507 provides:
A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may, pursuant to the time limitations imposed by subsection (f), move the court which imposed the sentence to vacate, set aside or correct the sentence.
Regarding trial errors raised within a K.S.A. 60-1507 motion, [m]ere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal. Supreme Court Rule 183(c)(3) (2018 Kan. S. Ct. R. 224). This means that [t]he judgment of an appellate court on a defendants direct appeal is res judicata as to all issues actually raised. Absent exceptional circumstances, those issues that could have been presented, but were not, are waived. State v. Barnes , 37 Kan. App. 2d 136, Syl. ¶ 9, 149 P.3d 543 (2007). Exceptional circumstances include the following:
(1) ineffective assistance of trial counsel in failing to object regarding an issue; (2) ineffective assistance of direct appeal counsel in failing to raise the issue; or (3) newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and the movant at the time of trial and direct appeal. Bledsoe v. State , 283 Kan. 81, 88-89, 150 P.3d 868 (2007).
To succeed on a K.S.A. 60-1507 claim of ineffective assistance of counsel, movants must establish (1) that counsels performance was deficient under the totality of circumstances, and (2) that counsels performance resulted in prejudice. Sola-Morales , 300 Kan. at 882, 335 P.3d 1162 (relying on Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 [1984] ). Prejudice means there was a reasonable probability that the outcome of the trial or appeal would have been different but for counsels deficient performance. Sola-Morales , 300 Kan. at 882, 335 P.3d 1162.
Trial Errors Generally
As he did below, Calhoun argues that he is entitled to relief under K.S.A. 60-1507 because of the following alleged trial errors: (1) because the trial court failed to properly instruct the jury on aiding and abetting; (2) because the trial court failed to properly instruct the jury on the role of hearsay evidence; (3) because the amended complaint charged him with simple kidnapping as opposed to aggravated kidnapping; (4) because his conviction for attempted voluntary manslaughter under a theory of aiding or abetting was a legal impossibility; (5) because his conviction for aggravated criminal sodomy was multiplicitous; (6) because his conviction for aggravated criminal sodomy was supported by insufficient evidence; (7) because his conviction for aggravated kidnapping was supported by insufficient evidence; (8) because his conviction for aggravated burglary was supported by insufficient evidence; and (9) because the prosecutor committed error multiple times. Calhoun has also alleged that the jury reached a compromised verdict and engaged in misconduct.
Yet, as previously noted, to be entitled to relief under K.S.A. 60-1507 for trial errors, exceptional circumstances must exist. Here, it is undisputed that Calhoun did not argue that exceptional circumstances existed to raise purely trial errors until his preliminary hearing, which was after the time to timely file a K.S.A. 60-1507 motion. At the preliminary hearing, when counsel argued on behalf of Calhoun that exceptional circumstances existed, he did not explain what those exceptional circumstances were or why such arguments were allowed past the K.S.A. 60-1507(f) time limits. Accordingly, at the end of the hearing, the trial court correctly refused to consider the proposed oral amendment as untimely.
Moreover, to the extent that Calhouns arguments concern only trial errors, his arguments were waived because they could have been raised in his direct appeal. See Barnes , 37 Kan. App. 2d 136, Syl. ¶ 9, 149 P.3d 543. Yet, on the other hand, because allegations involving trial counsels and appellate counsels ineffective assistance both constitute exceptional circumstances, we may consider Calhouns allegations involving trial errors to the extent those allegations are raised within his ineffective assistance of counsel claims. See Bledsoe , 283 Kan. at 88-89, 150 P.3d 868.
Aiding and Abetting Jury Instruction
Below, Calhouns principal argument concerned the giving of an aiding and abetting instruction. On appeal, Calhoun continues to challenge the giving of this instruction, arguing that trial counsel and appellate counsel provided ineffective assistance by not challenging the portion of the instruction telling the jury that it could convict him of any crimes that it believed were reasonably foreseeable consequences of the intended crime-aggravated robbery. He argues that the instruction lowered the States burden of proof to convict him of his specific intent crimes-attempted voluntary manslaughter, aggravated kidnapping, aggravated burglary, and criminal threat. He also argues that our Supreme Courts decision in Overstreet supports that the instruction was erroneous. He, in turn, asserts that this court should reverse his specific intent convictions based on trial counsels and appellate counsels ineffective assistance.
At Calhouns trial, the trial court provided the jury with the following instruction on aiding and abetting:
"A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime, with intent to promote or assist in its commission, is criminally responsible for the crime committed, regardless of the extent of the defendants participation, if any, in the actual commission of the crime.
"In addition, a person 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.
All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime, or mere presence in the vicinity of the crime, or mere failure to stop or report the crime, is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime, the defendant must willfully and knowingly associate himself with the unlawful venture, and willfully participate in it as he would in something he wishes to bring about or make succeed.
The first paragraph of the instruction mirrors PIK Crim. 3d 54.05 (2006 Supp.), which outlines when a defendant can be held responsible for crimes of another that the defendant also intended. This is the aiding and abetting same mental culpability instruction. The second paragraph follows PIK Crim. 3d 54.06 (2009 Supp.), which outlines when a defendant can be held responsible for crimes of another that the defendant did not intend. The second paragraph is the aiding and abetting foreseeability instruction.
Both the aiding and abetting same mental culpability and foreseeability instructions are based on the language of K.S.A. 21-3205. In relevant part, K.S.A. 21-3205 provides:
"(1) 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.
(2) A person liable under subsection (1) hereof 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.
The language of the second and third paragraphs comes from State v. Jackson , 280 Kan. 16, 29, 118 P.3d 1238 (2005), where our Supreme Court held that this language fairly reflected the law as it pertained to Jacksons case. A jury convicted Jackson of first-degree premeditated murder, kidnapping, and conspiracy to commit murder under a theory of aiding and abetting. Yet, the Jackson court never considered the appropriateness of the aiding and abetting foreseeability instruction as it applied to Jacksons specific intent crimes. See 280 Kan. at 29-30, 118 P.3d 1238. Further, the case preceded the Overstreet decision by over three years and State v. Engelhardt , 280 Kan. 113, 132, 119 P.3d 1148 (2005), another case about the aiding and abetting foreseeability instruction, by a week.
In Overstreet , our Supreme Court addressed the appropriateness of the aiding and abetting same mental culpability and foreseeability instructions when the defendant was charged with specific intent crimes. Overstreet had been charged with attempted first-degree premeditated murder and an alternative count of aggravated assault under a theory of aiding and abetting. As in Calhouns case, the trial court provided the jury with an aiding and abetting instruction that first listed the same mental culpability language and then listed the foreseeability language. Overstreet argued that the trial court erred by giving the jury both the aiding and abetting same mental culpability and foreseeability instructions because it relieved the State of its burden of proving premeditation-an essential element of attempted premeditated murder-beyond a reasonable doubt. 288 Kan. at 9, 200 P.3d 427.
In considering Overstreets argument, our Supreme Court first relied on the Engelhardt decision, which held:
The specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim. 280 Kan. at 132, 119 P.3d 1148.
In other words, the Engelhardt court held that it was error to provide a jury with the aiding and abetting foreseeability instruction because it allowed the jury to convict the defendant of premeditated murder under a theory that the murder was a reasonably foreseeable consequence of some other intended crime, which impermissibly lowered the States burden of proof. 280 Kan. at 133, 119 P.3d 1148.
The Overstreet court determined that the Engelhardt decision controlled the resolution of Overstreets case because attempted premeditated murder was a specific intent crime. 288 Kan. at 11, 200 P.3d 427. As a result, the State was required to prove beyond a reasonable doubt that [Overstreet] intend[ed] to promote or assist in the commission of an attempted first-degree premeditated murder. 288 Kan. at 11, 200 P.3d 427 (quoting Engelhardt , 280 Kan. at 131, 119 P.3d 1148 ). Yet, the Overstreet court explained that when the trial court provided Overstreets jury with the aiding and abetting foreseeability instruction, it told the jury that the jury could find him guilty of attempted premeditated murder regardless of whether he possessed the specific intent of premeditation; all that mattered was whether the jury believed the attempted premeditated murder was a reasonably foreseeable consequence of Overstreets aggravated assault. Thus, like in Engelhardt , our Supreme Court held that giving the aiding and abetting foreseeability instruction negated the States burden to prove an essential element of the crime charged: premeditation. 288 Kan. at 11-12, 200 P.3d 427.
Next, our Supreme Court created a bright-line rule on the appropriateness of the aiding and abetting foreseeability instruction: [F]or a defendant to be convicted of a specific-intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal. 288 Kan. at 13, 200 P.3d 427. Thus, when a defendant is charged with a specific intent crime under a theory of aiding and abetting, the jury should be given the aiding and abetting same mental culpability instruction, but not the aiding and abetting foreseeability instruction. If the defendant is charged with both specific intent and general intent crimes, the trial court must instruct the jury that it can use an aiding and abetting foreseeability instruction only when considering whether the defendant is guilty of general intent crimes.
Even though Overstreet did not object to the giving of the aiding and abetting foreseeability instruction below, our Supreme Court found the instructions were clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. Overstreet , 288 Kan. 1, Syl. ¶ 1, 200 P.3d 427. The Overstreet court determined that the giving of the aiding and abetting foreseeability instruction in Overstreets case was clearly erroneous because the conflicting aiding and abetting instructions and certain statements made by the prosecutor during closing arguments created a real possibility that the jury found him guilty of attempted premeditated murder not because the defendant aided or abetted in the attempted premeditated murder but because the murder was a reasonably foreseeable consequence of the aggravated assault. 288 Kan. at 14-15, 200 P.3d 427. As a result, our Supreme Court reversed Overstreets attempted premeditated murder conviction and remanded for a new trial. 288 Kan. at 15, 200 P.3d 427.
In this case, there is no dispute that the trial court provided the jury the aiding and abetting foreseeability instruction-PIK Crim. 3d 54.06. Next, there is no dispute that Calhoun was convicted of committing four specific intent crimes: aggravated kidnapping under K.S.A. 21-3421, attempted voluntary manslaughter under K.S.A. 21-3403, which was the lesser included offense of attempted intentional second-degree murder under K.S.A. 21-3402(a), aggravated burglary under K.S.A. 21-3716, and criminal threat under K.S.A. 21-3419(a)(1). See State v. Mattox , 305 Kan. 1015, 1025, 390 P.3d 514 (2017) (holding that aggravated kidnapping is a specific intent crime); State v. Daws , 303 Kan. 785, 793, 368 P.3d 1074 (2016) (holding that aggravated burglary is a specific intent crime); State v. Deal , 293 Kan. 872, 883, 269 P.3d 1282 (2012) (holding that intentional second-degree murder is a specific intent crime); State v. Richardson , 289 Kan. 118, 122, 209 P.3d 696 (2009) (stating that criminal threat is a specific intent crime); State v. Gutierrez , 285 Kan. 332, 344, 172 P.3d 18 (2007) (holding that attempted voluntary manslaughter is a specific intent crime).
Indeed, the instructions provided to the jury stated that to find Calhoun guilty of aggravated kidnapping, Calhoun needed to take or confine S.E.C. by force or threat with [the] intent to hold [S.E.C.] to facilitate the commission of any crime. For attempted voluntary manslaughter, Calhoun needed to act with the intent to commit the crime of voluntary manslaughter against Javier upon a sudden quarrel. For aggravated burglary, Calhoun needed to knowingly enter into Javier and S.E.C.s house without authority while people were home with the intent to commit an aggravated robbery therein. For criminal threat, Calhoun needed to threaten to commit violence with the intent to terrorize [Javier and S.E.C.].
Consequently, it is readily apparent that contrary to our Supreme Courts bright-line rule in Overstreet , Calhouns jury had access to the aiding and abetting foreseeability instruction in determining Calhouns guilt concerning specific intent crimes. Moreover, nothing within the jury instruction packet told the jury that it was limited to using the aiding and abetting foreseeability instruction while considering Calhouns guilt concerning the charged general intent crimes.
Even so, at the jury instruction conference, trial counsel did not object to the giving of the aiding and abetting instruction that combined the aiding and abetting same mental culpability and foreseeability instructions. And on appeal, appellate counsel did not challenge the inclusion of the aiding and abetting foreseeability instruction.
Although appellate counsel never raised this issue on Calhouns direct appeal, the State contends that this courts decision in Calhoun I controls Calhouns current ineffective assistance of counsel argument. The State alleges that in Calhoun I this court examined the evidence in [Calhouns] case in the context of the jury instructions on aiding and abetting, including the reasonable foreseeability portion, and concluded that sufficient evidence supported all of [Calhouns] convictions. This is the exact same argument that the State made below, which the trial court adopted in its entirety.
The States explanation of Calhoun I is misleading. In Calhoun I , Calhoun, through counsel, challenged whether the language in the aiding and abetting same mental culpability instruction-PIK Crim. 3d 54.05-provided at Calhouns trial created alternative means of committing a crime. The Calhoun I court relied on language from State v. Boyd , 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), overruled in part by State v. Betancourt , 299 Kan. 131, 322 P.3d 353 (2014), to hold that the language in the aiding and abetting foreseeability instruction-PIK Crim. 3d 54.06-created no alternative means to committing the crime; thus, so long as Calhouns crimes were a reasonably foreseeable consequence of Calhouns intended crime, his convictions were legally valid. 2013 WL 2991066, at *2-3. The Calhoun I court went on to find that aggravated robbery, aggravated criminal sodomy, aggravated battery, criminal threat, aggravated kidnapping, and attempted voluntary manslaughter, are considered a foreseeable consequence of the inherently dangerous felony Calhoun intended to commit, and sufficient evidence supported these convictions. 2013 WL 2991066, at *3.
Clearly, the Calhoun I court did not consider the argument that Calhoun is raising now: trial and appellate counsel provided ineffective assistance because they never challenged the giving of the aiding and abetting foreseeability instruction, which lowered the States burden of proof to convict him of his specific intent crimes at trial. Indeed, it is readily apparent that the Calhoun I court worked under the premise that the aiding and abetting foreseeability instruction was legally appropriate as to all of Calhouns crimes because nobody had challenged the validity of the instruction. As a result, the States argument, and also the trial courts ruling, is incorrect.
Turning our focus back to a movants burden under K.S.A. 60-1507, we note that if a movant makes more than conclusory contentions and an evidentiary basis supports movants claims, the movant is entitled to an evidentiary hearing. Grossman , 300 Kan. at 1062, 337 P.3d 687. Moreover, when ineffective assistance of counsel and prejudice is readily apparent from the motion, files, and records of the movants case, this court has exercised its de novo review and reversed the defendants conviction and remanded for a new trial without first remanding for an evidentiary hearing. Vontress v. State , No. 101,434, 2010 WL 2545646, at *2 (Kan. App. 2010); see Eddy v. State , No. 114,229, 2016 WL 4259994 (Kan. App. 2016) (unpublished opinion) (reversing Eddys multiplicitous convictions following a preliminary hearing based on ineffective assistance of appellate counsel).
For example, in Vontress , Vontress argued that his appellate counsel was ineffective for not challenging an instruction stating the jury could not consider whether he was guilty of a lesser included offense unless and until it found him not guilty of a different lesser included offense. 2010 WL 2545646, at *1. The trial court summarily denied Vontress K.S.A. 60-1507 motion, ruling that the jury instruction issue raised by Vontress had already been decided against [him] in his direct appeal. 2010 WL 2545646, at *2.
On appeal from the summary denial of his motion, this court first noted that the instruction issue was not previously raised and ruled on in Vontress direct appeal. Instead, a different issue involving the jury instructions was raised in Vontress direct appeal. 2010 WL 2545646, at *2-3. Next, this court recognized that although an appellate courts failure to raise an issue is not per se ineffective assistance of counsel, when an instruction error is clearly erroneous, counsels failure to challenge that instruction necessarily constitutes ineffective assistance of counsel. 2010 WL 2545646, at *3-6. After finding that the instruction was clearly erroneous because there was a real possibility the jury would have reached a different verdict if properly instructed, this court found that both prongs of the ineffective assistance of counsel test had necessarily been met. 2010 WL 2545646, at *6. In turn, this court reversed Vontress second-degree murder conviction and remanded for a new trial without first remanding for an evidentiary hearing. 2010 WL 2545646, at *7.
Yet, before addressing the instructional error as it relates to those specific intent convictions, it is first important to note that Calhoun cannot establish that the instruction was prejudicial as it pertains to his aggravated burglary conviction. Again, Calhoun explicitly testified that he went to Javier and S.E.C.s house with the intent to rob Javier of his marijuana and money. Once at the house, he testified that after he, Little, and Thompson could not break into the garage, they pushed their way through the front door of Javier and S.E.C.s house to get the garage door key from Javier. Simply put, Calhouns trial testimony eliminates any questions of whether there was a real possibility that the jury would have reached a different aggravated burglary verdict had the trial court properly instructed the jury.
Regarding his remaining specific intent convictions, however, the confusion that the aiding and abetting instructions created here is far greater than the confusion the aiding and abetting instructions created in Overstreet . For instance, in Overstreet , our Supreme Court found that the three instances where the prosecutor highlighted the aiding and abetting foreseeability instruction during closing arguments exacerbated the confusion. 288 Kan. at 14, 200 P.3d 427. Here, the prosecutors entire rebuttal during closing arguments hinged on telling the jury that they could convict Calhoun of all the crimes charged because they were reasonably foreseeable consequences of the aggravated robbery:
"The defendant tells you a lot.... [H]e told you that he was just looking around, he says that he was just going out to the garage to see what they were doing....
"But what did he tell the detective three and a half months after this happened? He told you all about their plan. And is it foreseeable? You know, he would love you to only hold, you know, each person accountable for what they did, but that is not Kansas law. Its not Kansas law. Agendas change through a crime when something happens. You know, theyre going in there to rob them of money and they have no money, agendas change.
"Well, lets rob em of something else, lets rape her, lets take the DVD instead of the money, oh, lets get the jewelry instead of the money, agendas change as events change. And thats what happened here.
"The whole defense is trying to minimize the defendants behavior....
"Well, if I say I didnt hear a gunshot, then there [were not] any gunshots. Well, if I say I just ... stepped outside on the porch and didnt hear or see whats going on, then you know, Im not involved. Well, if I say I just, you know, saw through a crack in the door that the wife was naked and Christopher and [M.D.] were pulling up their pants, if I just say I know I just saw that, then I wasnt involved. ...
"... You look at the actions of these guys and you use your common sense, are the crimes foreseeable. If you decide, if you decide that the defendant did not intend and was not part of those, the sex crimes, the kidnapping, if you decide that, are the other crimes foreseeable?
"When four masked men, armed, go into the home in the middle of the night is it foreseeable that theyll get all the adults in one room so nobody can escape to call the police, so nobody, you know-so they can go about their business in the house? Yes.
"Is it foreseeable that they will rape, sodomize, anally and orally, the pretty wife because they didnt find any money? Is it foreseeable that they will shoot the husband when he wont tell em where the money is? Yes. Is it foreseeable that they will shoot and beat the husband almost to the point of killing him, because theyre so mad because their crime that they wanted to commit didnt happen?
"Is it foreseeable that they would go to try to steal other stuff, DVDs, jewelry, all that kind of stuff, because they didnt get the money that they wanted to get? Yes. This case is not about Isaac Little committ[ing] attempted murder , this case is not about [M.D.] committ[ing] the rape in the bedroom, this case is not about Christopher Thompson committ[ing] the oral sex and the anal sex in the garage.
"... In this case everybody had something different to do, but in the end they all together committed these crimes. Thats what aiding and abetting is , its defendant or another, they dont have to specifically be the one with the gun, they dont have to specifically be the one that puts their penis in someones anus, they dont have to specifically be the one that shoots someone in the torso two times, that shoots someone in the head. ...
This case is about these four Musketeers, all for one, one for all. Thats Kansas law. When you go in to commit a violent crime and more violence happens, that more violence is foreseeable. Find him guilty as charged. Thank you. (Emphases added.)
Next, during deliberations, the jury asked the trial court questions about the aiding and abetting jury instruction. Evidently, the trial court, counsel, and the prosecutor addressed the jurys questions in private before creating a record of their response. The individual jury questions do not appear in the record on appeal. Yet, according to the trial courts account of the jurys questions on the record, the jury asked various questions about aiding and abetting. The agreed upon response to those various questions was as follows: [R]egarding your inquiries about aiding and abetting, the reasonable foreseeability of any crime is a question for the jury to decide and the reasonable foreseeability of each count must be considered separately. Thus, the jurys confusion on how to properly use the aiding and abetting foreseeability instruction was evident.
Moreover, although K.S.A. 60-441 bars this court from considering B.R.s and D.M.s statements suggesting that the jury did, in fact, convict Calhoun of the specific intent crimes under the theory of foreseeability, the fact that Calhoun was acquitted of rape and three counts of aggravated criminal sodomy establishes that the jury did not believe Calhoun aided and abetted in the commission of all the crimes. See State v. Franklin , 264 Kan. 496, 499-504, 958 P.2d 611 (1998) (holding that a jurors testimony on whether a unanimity instruction caused confusion during deliberations violated K.S.A. 60-441 ). And, as shown by the prosecutor during closing arguments, Calhouns defense centered on alleging that he was not an active participant in the crimes at Javier and S.E.C.s house.
To review, Calhoun denied committing any of the violent crimes against Javier, S.E.C., or the baby. Calhoun alleged that Little was the only person with a gun. Indeed, he alleged that Little was the person who forced Javier to get down on the ground, and he was not present when S.E.C. was placed next to Javier. He alleged that he yanked the baby from Little when Little had put a gun up against the babys head. He denied participating in any of the sex assaults against S.E.C. He also asserted that he tried to stop Little from shooting Javier, yelling at Little to stop shooting.
In addition, important elements of Calhouns testimony was supported by the States witnesses. Javier and S.E.C. both indicated that they only saw one man with a gun. Javier asserted that the man with the gun was the man who threatened his infant son and the only man who shot him. S.E.C. testified that she heard one of the men yell stop shooting at the gunman. Last, M.D. testified that Little was the man with the gun who shot Javier.
In short, there was far more evidence than there was in Overstreet that the aiding and abetting foreseeability instruction adversely affected the outcome of Calhouns jury trial. The prosecutors statements about the instruction were many and at length. The prosecutor even stated that the aiding and abetting foreseeability instruction as it applied to Calhouns case was Kansas law. On top of that, the jury had various questions about aiding and abetting, and based on the trial courts response to the jurys questions, their questions centered on applying the aiding and abetting foreseeability instruction. The trial courts response only made matters worse because the trial court reemphasized that the aiding and abetting foreseeability instruction was valid law as to all of Calhouns crimes. Further, the aiding and abetting foreseeability instruction undermined Calhouns defense that he never intended for the violent crimes to occur, which was corroborated by some of the States witnesses. Thus, it is readily apparent that the giving of the instruction resulted in clear error because there was a real possibility that the jury would have found Calhoun not guilty of aggravated kidnapping, attempted voluntary manslaughter, and criminal threat if it had been properly instructed.
In turn, it is also readily apparent that trial and appellate counsels failures to challenge the aiding and abetting foreseeability instruction constituted prejudicial ineffective assistance of counsel. Simply put, the motion, files, and records of Calhouns case establish that but for trial counsels failure to object to the aiding and abetting foreseeability instruction at Calhouns trial, there was a reasonable probability that he would not have been convicted of aggravated kidnapping, attempted voluntary manslaughter, and criminal threat. This same evidence also establishes that had appellate counsel challenged the aiding and abetting foreseeability instruction as clearly erroneous on Calhouns direct appeal, this court would have found the aiding and abetting foreseeability instruction clearly erroneous.
As the Vontress court explained: Having found clear error due to a real possibility the jury would have rendered a different verdict had the proper instruction been provided, we necessarily conclude that both parts of the ineffective assistance of counsel test have been met. 2010 WL 2545646, at *6. For these reasons, like in Vontress , Calhoun is entitled to reversal of his aggravated kidnapping, attempted voluntary manslaughter, and criminal threat convictions based on ineffective assistance of counsel.
Remaining Allegations of Ineffective Assistance of Counsel Fail
Calhouns remaining allegations of ineffective assistance of counsel fail for the following reasons.
1. Calhoun alleges that counsel were ineffective for not challenging the lack of instruction stating that hearsay evidence can only be considered for impeachment of the declarant and not as substantive evidence of guilt. This is not supported by K.S.A. 2017 Supp. 60-460 -the law on admission of hearsay. To the extent that his argument challenges the allegation that law enforcement officers [were allowed] to testify first regarding hearsay statements made by the actual witnesses ..., K.S.A. 2017 Supp. 60-460(a) allows this testimony under the [p]revious statements of persons present hearsay exception.
2. Calhoun argues that counsel should have challenged his amended complaint as defective because it charged him with simple kidnapping instead of aggravated kidnapping. Calhoun fails to explain that the State made this amendment after his trial in an attempt to memorialize an oral amendment during his trial that amended his aggravated kidnapping charge from listing both Javier and S.E.C. as victims to listing just S.E.C. as a victim. The oral amendments to the complaint were effective when the trial court granted them at Calhouns trial. See State v. Nunn , 244 Kan. 207, 224, 768 P.2d 268 (1989). And under K.S.A. 22-3201(e), courts may allow amendments at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced . (Emphasis added.) Thus, the States postverdict amendment changing Calhouns charge from aggravated kidnapping to simple kidnapping was prohibited under K.S.A. 22-3201(e).
3. Calhoun argues that counsel should have challenged his attempted voluntary manslaughter conviction as legally impossible because (1) a person cannot be convicted of committing or attempting to commit voluntary manslaughter upon a sudden quarrel under a theory of aiding or abetting, and (2) all attempted murders are actually aggravated batteries. Attempted voluntary manslaughter is a valid crime in Kansas. Gutierrez , 285 Kan. at 344, 172 P.3d 18. Both the crimes of attempted murder and attempted voluntary manslaughter require an attempt to kill, but aggravated battery does not, making the offenses distinct crimes. See 285 Kan. at 344, 172 P.3d 18.
4. Calhoun argues that his counsel should have challenged his four aggravated criminal sodomy charges as multiplicitous. Disregarding the other problems with this argument, this argument is moot since Calhoun was convicted of only one count of aggravated criminal sodomy.
5. Calhoun argues that his counsel were ineffective for not asserting that insufficient evidence supported his aggravated criminal sodomy conviction because no evidence supported that he acted as the principal. K.S.A. 21-3506(a)(3), the aggravated criminal sodomy statute that Calhoun was convicted under, is a general intent crime. See State v. Plunkett , 261 Kan. 1024, 1033, 934 P.2d 113 (1997). This court determined that aggravated criminal sodomy was a reasonably foreseeable consequence of aggravated robbery in Calhoun I , 2013 WL 2991066, at *3. Accordingly, Calhoun cannot establish ineffective assistance of counsel.
6. Calhoun argues that his counsel were ineffective for not asserting that insufficient evidence supported his aggravated kidnapping conviction because the movement of the victim, S.E.C., constituted part of some other crime-she was moved to the living room to be questioned about where the drugs and money were, then taken to the bedroom to be raped, and then taken to the garage to open it for them so they could search it for drugs and money. Disregarding the other problems with this argument, Calhoun was not convicted of rape. Therefore, this argument is moot.
7. Calhoun argues that his counsel were ineffective for not asserting that insufficient evidence supported his aggravated burglary conviction because he did not enter Javier and S.E.C.s drug house without authority. Calhoun relies on our Supreme Courts decision in State v. Johnson , 266 Kan. 322, 970 P.2d 990 (1998). The Johnson court held that a drug house was not burglarized when the would-be burglars entered the house with the drug dealers authority under the ruse that they were there to discuss drugs. 266 Kan. at 327-33, 970 P.2d 990. Here, Calhoun and his accomplices entered Javier and S.E.C.s house at gunpoint. Therefore, his case is distinguishable from the Johnson case.
8. Calhoun asserts his counsel were ineffective for not raising ten individual claims of prosecutorial error, that can be grouped as follows: (1) that the prosecutor misstated that law on aiding and abetting; (2) that the prosecutor started finishing a witness responses; (3) that the prosecutor interjected her opinions on facts in evidence on two separate occasions; (4) that the prosecutor asked leading questions during direct examination on two separate occasions; and (5) that the prosecutor admitted or relied on irrelevant evidence on four separate occasions. Calhouns claim about the prosecutor misstating the law on aiding and abetting has been fully addressed in the preceding section. Otherwise, for each of his prosecutorial error claims, Calhoun has not explained why either trial or appellate counsel should have challenged the prosecutors actions. K.S.A. 60-1507 movants must make more than conclusory arguments to obtain relief. Sola-Morales , 300 Kan. at 881, 335 P.3d 1162. Calhouns arguments are conclusory.
9. Calhoun argues that appellate counsel was ineffective for not arguing that the jury reached a compromised verdict and engaged in misconduct. Calhoun also contends that this argument, which he admits was untimely under K.S.A. 60-1507(f), related back to his timely filed K.S.A. 60-1507 motion because in that motion, he noted he would raise other instances of ineffective assistance of counsel at the hearing. In Pabst v. State , 287 Kan. 1, 25, 192 P.3d 630 (2008), our Supreme Court held that movants alleging ineffective assistance of counsel under K.S.A. 60-1507 are not entitled to amend their motion to raise a new claim of ineffective assistance after the K.S.A. 60-1507(f) time limit has run simply because they had previously argued ineffective assistance of counsel. Thus, Calhouns broad statement does not meet the relation-back test. Also, the trial court correctly denied Calhouns motion for new trial based on Kaiser , a case where our Supreme Court held that a jurors agreement to a verdict that was followed by a change of mind after entering the verdict was not a basis for a new trial. 260 Kan. at 249-52, 918 P.2d 629. This relates to [a jurors] mental process in determining the verdict and is prohibited by K.S.A. 60-441. Kaiser , 260 Kan. at 252, 918 P.2d 629.
10. Calhoun asserts that trial counsel should have stipulated to uncontested prejudicial facts, i.e. [r]ape, sodomies, shooting, etc., to keep the unnecessary and prejudicial evidence out of his trial. He asserts that the failure to stipulate to this evidence inflamed the passions of the jury, hurting his defense that he was not involved in anything but the robbery. Calhouns argument is premised on his belief that the facts surrounding the rape, sodomies, and shooting were uncontested. The evidence presented at trial, however, indicated that although some facts surrounding the rape, sodomies, and shooting were uncontested, other facts were contested. Calhoun provides no insight about how counsel could have stipulated to these facts. A stipulation cannot exist if there is no agreement of fact.
11. Calhoun complains that trial counsel failed to locate certain unnamed witnesses who could have testified about Javiers drug business. He also complains that counsel did not sequester witnesses. Yet, Calhoun has not explained how counsels actions were ineffective or resulted in prejudice. Thus, his arguments are conclusory. See Horn v. State , No. 114,982, 2016 WL 7429319, at *15 (Kan. App. 2016) (unpublished opinion) (rejecting movants claims about failure to sequester witnesses as conclusory).
Conclusion
Because the record establishes ineffective assistance of counsel and prejudice, we reverse Calhouns aggravated kidnapping, attempted voluntary manslaughter, and criminal threat convictions, and remand for a new trial.
Affirmed in part, reversed in part, and remanded.