STATE OF KANSAS v. AARON ROBERT BROWN

The State charged Brown with attempted second-degree intentional murder. At

trial, Brown claimed he acted in self-defense because Lolar was threatening him. The

district court instructed the jury on attempted second-degree intentional murder, the lesser

offense of attempted voluntary manslaughter (imperfect self-defense), and self-defense.

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However, the verdict form mistakenly said: "We, the jury, find the defendant

guilty of the lesser offense of attempted involuntary manslaughter as set forth in

Instruction No 7." (Emphasis added.) Instruction No. 7 referred to the correct crime of

attempted voluntary manslaughter. Thus, the verdict was internally inconsistent. Nobody

caught this error until sentencing, long after the jury was discharged. The Cowley County

District Court sentenced Brown for the instructed crime, attempted voluntary

manslaughter.

The Court of Appeals reversed Brown's conviction for attempted voluntary

manslaughter and remanded for a new trial on that count. The panel held that the district

court erred when it corrected the verdict error. 2017 WL 5016171, at *5. On strikingly

similar facts, another panel of the Court of Appeals came to a different conclusion,

holding a district court could reasonably interpret the verdict in light of the record. See

State v. Rice, No. 103,223, 2011 WL 4031494, at *11 (Kan. App. 2011) (unpublished

opinion).

This court granted the State's petition for review to resolve a panel split between

Brown and Rice. Brown dismissed his appellate defender and proceeds pro se.

ANALYSIS

Here, the panel reversed Brown's attempted voluntary manslaughter conviction

because of the verdict form error and remanded for a new trial on that charge. Brown,

2017 WL 5016171, at *1. The panel began its opinion by declaring: "Courts have to treat

completed jury verdict forms in a criminal case as saying what they mean and meaning

what they say. . . . [C]ourts cannot take it upon themselves to unilaterally fix ostensibly

errant verdicts." 2017 WL 5016171, at *1. Thus, the lower court held that the written

language of the verdict must control and the district court is powerless to deviate from its

literal meaning.

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The panel admitted that "[h]ow to categorize the defect—as a technical flaw or as

something more—isn't entirely obvious." 2017 WL 5016171, at *3. But, it concluded,

"Whether the problem is classified as one of formality or one of substance, the district

court could not have purported to fix it after the jury had been discharged." 2017 WL

5016171, at *3.

The panel reasoned that, on the one hand, if the verdict was "defective in form

only," then the district court only had statutory authority under K.S.A. 22-3421 to

"correct" it with the jury's assent—not on its own volition. K.S.A. 22-3421; 2017 WL

5016171, at *3-4. As K.S.A. 22-3421 states: "If the verdict is defective in form only, it

may be corrected by the court, with the assent of the jury, before it is discharged." On the

other hand, if the verdict contained a substantive error, then it should be treated like

"inconsistent verdicts" that are sent back to the jury for resolution. 2017 WL 5016171, at

*3. The panel cited State v. Hernandez, 294 Kan. 200, 202-07, 273 P.3d 774 (2012), to

support its "inconsistent verdict" theory, which held: "When a jury, contrary to the

court's instructions, finds a defendant guilty of both the completed crime and an attempt

of the same crime, it is the duty of the trial court to order the jury to reconsider and

correct its verdict." 294 Kan. 200, Syl. ¶ 2.

Thus, the Brown panel concluded the district court erred when it corrected the

verdict to attempted voluntary manslaughter, analogizing the correction to a directed

verdict. Brown, 2017 WL 5016171, at *4. In so holding, the panel acknowledged that "an

obvious typographical error doesn't demand judicial concern or attention . . . [b]ut

reconciling a conflict between the actual crime of conviction in the verdict form and the

crimes presented in the instructions is of an entirely different scope." 2017 WL 5016171,

at *5. The panel emphasized that "[a]ny judicial reconciliation after the jury has been

discharged amounts to a guess." 2017 WL 5016171, at *5.

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In closing, the Brown panel was forthright that "[a]nother panel of this court came

to a different conclusion on similar facts in State v. Rice . . . a decision upon which the

district court relied heavily." Brown, 2017 WL 5016171, at *4. But the Brown panel

openly disagreed with Rice, stating:

"We don't believe a district court or an appellate court can tamper with a completed

verdict form to change the crime of conviction no matter how obvious the purported error

by the jury might be. The prerogative to revise belongs to the jury and expires when the

jury has been discharged. At that point, the judicial corrective is limited to a new trial."

2017 WL 5016171, at *5.

The Rice panel, however, reasoned that it is the jury's intent rather than the literal

words on the verdict form that controls, and a district court may reasonably interpret the

verdict form to give effect to the jury's intent. In Rice, "the jury was informed about the

elements of aggravated indecent liberties [with a child], as charged in the information,

but the verdict form mistakenly referred to the crime charged as indecent liberties with a

child." Rice, 2011 WL 4031494, at *2. On appeal, the defendant argued his sentence for

aggravated indecent liberties was illegal because the verdict form said indecent liberties.

As here, the jury was polled and affirmed the verdict, and nobody caught the error until

sentencing. Ultimately, the district court sentenced the defendant for aggravated indecent

liberties because "'there was no confusion by anyone and the jury could only have found

the elements'" of aggravated indecent liberties. 2011 WL 4031494, at *9.

At the outset, the Rice panel recognized that the defendant "could not be convicted

of indecent liberties because, as a general rule, '[a] defendant may not be convicted of a

crime with which he was not charged.'" 2011 WL 4031494, at *10 (quoting Harris v.

State, 288 Kan. 414, 417, 204 P.3d 557 [2009]). But the Rice court treated the question as

one of interpretation, asking, "[W]hat crime did the jury find Rice guilty of—aggravated

indecent liberties or indecent liberties?" 2011 WL 4031494, at *11. To answer this, the

panel turned to the surplusage rule: "'A verdict can be properly interpreted by reference

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to the information, to the court's instructions and to the record; surplusage may be

disregarded when the jury's verdict is otherwise responsive to the charge.'" (Emphasis

removed.) 2011 WL 4031494, at *11 (quoting State v. Taylor, 212 Kan. 780, Syl. ¶ 1,

512 P.2d 449 [1973]). In Taylor, we held that "a verdict may be upheld when it simply

states the defendant is found guilty as charged in the information, any surplus verbiage

may be disregarded." 212 Kan. at 783. Notably, the Taylor court labeled a misstated

crime on the verdict form as "surplusage." 212 Kan. at 783.

Applying the surplusage rule, the Rice panel held the jury intended to find the

defendant guilty of aggravated indecent liberties for four fact-specific reasons:

"First, the crime of indecent liberties was never at issue during the trial. Second, the

crime of aggravated indecent liberties was the only crime ever mentioned or referenced

with regard to Count II. Third, the jury was specifically instructed—on two separate

occasions—to consider whether the State had proven the elements of aggravated indecent

liberties in Count II. The elements instruction for Count II properly set forth the elements

for aggravated indecent liberties. Fourth, although the verdict form did not have the

adjective 'aggravated' in the name of the crime, the form properly described the count

wherein the crime was charged, and this crime was repeatedly identified throughout the

trial as aggravated indecent liberties. In summary, our conclusion is the result of

considering the verdict form itself, the second amended complaint, the trial court's

instructions, and the trial record. See Taylor, 212 Kan. 780, Syl. ¶ 1." Rice, 2011 WL

4031494, at *12.

Finally, the Rice panel held that K.S.A. 22-3421, the defective verdict form

statute, did not apply to the facts before it. The panel believed that K.S.A. 22-3421

created a procedure for fixing "scrivener's error[s]," but the verdict error here did not fall

under that umbrella. 2011 WL 4031494, at *14. Thus, the Rice panel affirmed the

defendant's sentence for aggravated indecent liberties. 2011 WL 4031494, at *15.

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In sum, both Brown and Rice involved a charging document and relevant jury

instruction charging and accurately describing one crime, but a verdict form naming

another, similar-sounding crime. In both cases, the verdict form itself was the mistake—

the jury did not write in a new crime or otherwise alter the verdict form. The district court

and the parties missed the mistake until sentencing, when the jury had long been

dismissed. Both panels agreed that the defendant could not be convicted of a crime he

was not charged with, but they resolved the discrepancy between the verdict form and the

rest of the case—the charging document, the evidence and arguments presented, and the

elements instructions—in opposite ways. The Brown panel took a strict textualist

approach which considers the verdict form's literal language as sacrosanct. The Rice

panel took an interpretative approach which considers the jury's intent as paramount.

Today we side with the approach taken by the Rice panel and reverse the lower

court's decision here—though we do so with caution. Historically, we have followed the

general rule that when a verdict is ambiguous, the district judge may reasonably interpret

the verdict using the charging document, the jury instructions, and the record as a whole.

See State v. Doolittle, 153 Kan. 608, Syl. ¶ 1, 113 P.2d 94 (1941) ("In determining the

sufficiency of and in interpreting the verdict in a criminal case, the court may make use

of anything in the record that tends to show with certainty what the jury intended.");

Hodison v. Rogers, 137 Kan. 950, Syl. ¶ 1, 22 P.2d 491(1933) ("An ambiguous verdict in

a criminal case is entitled to a liberal interpretation, and reference may be had to the

court's instructions, to the forms of verdict submitted, and to the record to determine its

meaning and certainty."); In re Mooney, 89 Kan. 690, 693, 132 P. 217 (1913) ("'A verdict

is not bad for informality if the court can understand it. It is to have a reasonable

intendment, and is to receive a reasonable construction, and must not be avoided except

from necessity.'"); In re McLean, 84 Kan. 852, 855, 115 P. 647 (1911) ("The information

may be looked to as a matter of course to interpret the verdict.").

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For example, in Mooney the defendant was charged with one count of "committing

burglary and larceny by breaking into a freight car and stealing goods therein." Mooney,

89 Kan. at 691. At the time, a statute permitted burglary and larceny to be charged in the

same count. 89 Kan. at 691. The verdict found the defendant "guilty of the offense of

burglary and larceny, as charged in the information," but oddly, also found him not guilty

of burglary and larceny separately. 89 Kan. at 691. On appeal, the defendant argued the

verdict was either not guilty or void. This court disagreed, saying, "Any difficulty in

understanding what the jury really meant by the verdict, when it alone is considered,

disappears when it is read in connection with the instructions." 89 Kan. at 691.

In Mooney, the district court had instructed the jury on three offenses, which were

mirrored on the verdict form: "(1) Burglary and larceny combined; (2) burglary without

larceny; and (3) mere larceny." 89 Kan. at 691. This court interpreted the verdict in light

of the charging document and instructions and held, "Plainly what the jury meant by their

verdict was that . . . he was guilty of the offense which the instructions described as

'burglary and larceny,' and therefore not guilty of burglary without larceny, and not guilty

of larceny without burglary." 89 Kan. at 692. In so holding, this court declared:

"'Verdicts are not to be construed as strictly as pleadings, but are to have a

reasonable intendment and to receive a reasonable construction, and are not to be avoided

unless from necessity, originating in doubt as to their import, from immateriality of the

issue found, or their manifest tendency to work injustice.'" 89 Kan. at 693 (quoting 29 A.

& E. Encycl. of L. 1022).

In this line of cases, we have tended to view anything in the verdict form that

clearly and obviously contradicts the charging documents, the jury instructions, and the

record as a whole, as surplusage. "A verdict can be properly interpreted by reference to

the information, to the court's instructions and to the record; surplusage may be

disregarded when the jury's verdict is otherwise responsive to the charge." Taylor, 212

Kan. 780, Syl. ¶ 1; see State v. Rice, 273 Kan. 870, 873, 46 P.3d 1155 (2002); In re

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Lester, 128 Kan. 784, 785-86, 280 P. 758 (1929) (interpreting the verdict in light of the

charging document and disregarding "surplusage" that did not disturb the verdict's

meaning).

Of course this begs the question, what is "surplusage"? Three key cases shed light

on this term: Lester; State v. Whiting, 173 Kan. 711, 716, 252 P.2d 884 (1953); and

Taylor. These cases applied the surplusage rule to interpret verdicts that did not match the

charging language. And in all three, we upheld the convictions for the crime charged

because the verdict referenced the charging document and the record otherwise showed

no confusion about the real crime at issue.

In Lester, the defendant was charged with knowingly buying and receiving stolen

property. But the verdict form said he was guilty of buying and receiving the property

that "he knew had been stolen 'in the nighttime, as charged in the first count of the

information.'" (Emphasis added.) 128 Kan. at 785. The defendant later petitioned for

habeas relief, claiming the verdict was void because it found him guilty of a crime he was

not charged with. Indeed, the charging document did not say the property was stolen in

the nighttime. 128 Kan. at 785. We rejected the defendant's argument, stating that "the

three words 'in the nighttime' included in this verdict are mere surplusage and do not

affect the finding or verdict in any particular. Besides, the concluding words, 'as charged

in the first count of the information,' make the crime definite and specific by direct

reference." 128 Kan. at 785. The court also affirmed the longstanding rule that "'[t]he

information may be looked to for the purpose of interpreting a verdict in a criminal

case.'" 128 Kan. at 786 (quoting McLean, 84 Kan. 852, Syl. ¶ 3).

In Whiting, the defendant was charged with lascivious behavior, but "[t]he verdict

found the defendant guilty of lewd conduct, 'all in the manner and form charged in the

first count of the complaint.'" 173 Kan. at 715. On appeal, the defendant argued the

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verdict did not convict him of the offense charged because of this discrepancy. But again,

we disagreed, holding:

"The difference between 'lascivious behavior' and 'lewd conduct' is too fine a distinction.

At any rate, there was only one offense charged on this phase of the case. Actually the

words 'lewd conduct' in the verdict were surplusage. The verdict would have been good if

it had simply found the defendant guilty as charged in the first count of the complaint."

173 Kan. at 715-16.

Finally in Taylor, the information charged the defendant with taking property with

the "intent to embezzle" it, but the verdict found the defendant "'guilty of grand larceny

as charged in the information.'" 212 Kan. at 782-83. The defendant argued that because

he was charged under the embezzlement statute, the verdict finding him guilty of larceny

was not responsive to the charge. 212 Kan. at 782. This court acknowledged that

embezzlement and larceny were separate offenses. But citing Lester and Whiting, the

court held the jury intended to convict the defendant of embezzlement as charged:

"' The concluding clause, "as charged in the first count of the information," makes the

crime definite and specific by direct reference.'

"A verdict can be properly interpreted by reference to the information, to the

court's instructions and to the record; surplusage may be disregarded when the jury's

verdict is otherwise responsive to the charge. (In re McLean, 84 Kan. 852, Syl. 3, 115 P.

647; Hodison v. Rogers, 137 Kan. 950, Syl. 1, 22 P.2d 491, 88 A.L.R. 1080; State v.

Doolittle, 153 Kan. 608, Syl. 1, 113 P.2d 94.) Considering the statute, the information

and the court's instructions, it is clear in this case the jury's verdict was responsive to the

single charge contained in the information." Taylor, 212 Kan. at 784.

In sum, Lester, Whiting, and Taylor held that a verdict stating the defendant is

guilty as charged in the information is specific enough, and a verdict's mistaken

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description of the crime of conviction is surplusage that may be disregarded when the

verdict is otherwise responsive to the charge.

Kansas' surplusage rule is in good company. Most notably, in Statler v. United

States, 157 U.S. 277, 277, 15 S. Ct. 616, 39 L. Ed. 700 (1895), the U.S. Supreme Court

construed an ambiguous verdict using the surplusage rule. In that case, the defendant was

charged with '"having counterfeit coin in his possession with intent to defraud certain

persons,'" and he only contested the element of intent. 157 U.S. at 277-78. The jury

returned a verdict finding the defendant "'guilty in the first count for having in possession

counterfeit minor coin'"—the jury did not mention intent. 157 U.S. at 278. On appeal, the

defendant argued the jury did not convict him of a lawful crime. The Supreme Court

disagreed, stating, "The verdict being general, and not special, any words attached to the

finding 'guilty on the first count' are clearly superfluous, and are to be so treated." 157

U.S. at 279.

The Court stated that, dating back to English law, verdicts have been construed as

"'the finding of lay people.'" 157 U.S. at 279. That means verdicts "need not be framed

under the strict rules of pleading, or after any technical form. Any words which convey

the idea to the common understanding will be adequate; and all fair intendments will be

made to support it." 157 U.S. at 279. As the Court explained, the words attached to the

phrase "'guilty in the first count'" were "obviously superfluous":

"'To say, therefore, that the defendant is "guilty," or guilty of an offense named which is

less than the whole alleged, is sufficient, without adding "as charged in the indictment";

for the latter will be supplied by construction. So, likewise, a general finding of "guilty"

will be interpreted as guilty of all that the indictment well alleges. . . . Surplusage in a

verdict may be rejected, being harmless, the same as in pleading; and the verdict must be

construed as a whole, not in separate parts.' . . .

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"Reading the verdict here considered by the light of these elementary principles,

the words 'for having in possession counterfeit minor coin,' attached to the words 'guilty

in the first count,' are obviously superfluous, and striking them from the verdict leaves it

in all respects complete, and responsive to the charge." 157 U.S. at 279.

In the end, the Court held, "The record leaves no room for doubt that the words

'for having in possession counterfeit minor coin,' which were attached to the verdict, were

merely words identifying the first count, and were not, and could not have been, intended

to qualify the verdict of guilty." 157 U.S. at 280.

Other states take a similar approach. A few examples will suffice. In People v.

Camacho, 171 Cal. App. 4th 1269, 1271, 90 Cal. Rptr. 3d 559 (2009), "[a] verdict form

provided to the jury on a charge of robbery mistakenly identified the offense as

carjacking," and the jury returned a guilty verdict. The California court reasoned that

"[v]iewing the record as a whole, . . . the jury's unmistakable intent was to convict

defendant of robbery, as charged in count 2, and the clerical error in the verdict form was

surplusage that may be disregarded." 171 Cal. App. 4th at 1272. The court found the

jury's intent was "unmistakable" because "every stage of this case identified the offense

as robbery—the charging document, the opening statement, arguments of counsel, and

the jury instructions." 171 Cal. App. 4th at 1271.

In State v. Imhoff, 78 Wash. App. 349, 350, 898 P.2d 852 (1995), the defendant

was charged with one count of attempted possession of marijuana with intent to

manufacture or deliver, but "[t]he verdict form lacked the word 'attempted.'" 78 Wash.

App. at 350. The Washington court upheld the conviction for attempted possession

because it was "clear that the jury regarded the omission of 'attempted'" from the verdict

as an oversight. 78 Wash. App. at 350. The court reasoned:

"In reviewing instructions we must read them as a whole, not in isolation from

each other. . . . Based on the instructions, the only crime the jury could have possibly

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convicted Imhoff of was attempt to possess a controlled substance with intent to

manufacture or deliver. The jury is presumed to follow the court's instructions." 78 Wash.

App. at 351.

Third, in G.V.C. v. State, 132 So. 3d 668 (Ala. Crim. App. 2013), the defendant

was charged with a single count of first-degree sexual abuse, and during trial, the court

only instructed on that crime. But then the verdict form mistakenly said: "'We, the jury,

find the defendant [G.V.C.] GUILTY of Sexual Assault 1st Degree as charged in the

indictment.'" 132 So. 3d at 669.

The Alabama Court of Criminal Appeals affirmed that "'"[a] jury verdict will be

held to be sufficient if its meaning can be reasonably ascertained from the words used.

Where the error in the charge is in the form of the verdict and there is not prejudice to the

rights of the accused the error is harmless."'" 132 So. 3d at 675. The court reasoned that

the touchstone of the "jury-verdict-discrepancy" was the jury's intent. 132 So. 3d at 675.

The court believed that the trial court's correction of the verdict form to read "abuse"

instead of "assault" was not a substantive change, and in the end, it held the jury's intent

to convict the defendant as charged was clear from the record. 132 So. 3d at 677.

Thus, based on our own caselaw and persuasive decisions from other jurisdictions,

we conclude the Rice panel's general approach is correct. An ambiguous verdict can be

reasonably interpreted in light of the charging document, the jury instructions, and the

record as a whole to determine and give effect to the jury's intent. And when such intent

is clear, a mistaken description of the crime of conviction contained in the verdict form

may be discarded as "surplusage" when the verdict form also refers to the correct charge

by pointing back to the charging document or the jury instructions.

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Having reached this conclusion, the task of clarifying the appropriate standards

that apply when a district court is faced with this situation remains. We have not

previously articulated a definitive standard. We have described that standard variously:

 "[W]here the defect is not detected and corrected at the time, the sufficiency of

the verdict must depend upon whether the court can certainly say from it and

the information what was the true intent and meaning of the jury." (Emphasis

added.) State v. Wade, 56 Kan. 75, 76, 42 P. 353 (1895).

 "'Verdicts are not to be construed as strictly as pleadings, but are to have a

reasonable intendment and to receive a reasonable construction, and are not to

be avoided unless from necessity, originating in doubt as to their import, from

immateriality of the issue found, or their manifest tendency to work injustice.'"

(Emphasis added.) Mooney, 89 Kan. at 693 (quoting 29 A. & E. Encycl. of L.

1022).

 "'A verdict is not to be construed with the same strictness as an indictment, but

it is to be liberally construed, and all reasonable intendments will be indulged

in its support, and it will not be held insufficient unless, from necessity, there is

doubt as to its meaning.'" (Emphasis added.) Mooney, 89 Kan. at 693.

 "In determining the sufficiency of and in interpreting the verdict in a criminal

case, the court may make use of anything in the record that tends to show with

certainty what the jury intended." (Emphasis added.) Doolittle, 153 Kan. 608,

Syl. ¶ 1.

 "A person charged with a crime is supposed to be innocent until a verdict,

which is the result of a lawfully conducted jury trial, has been found, and

which states in language so definite and certain that different minds can not

15

fairly disagree as to its meaning that he is guilty of such offense." (Emphasis

added.) State v. Braden, 78 Kan. 576, 582, 96 P. 840 (1908).

 "Considering the [charging] statute, the information and the court's

instructions, it is clear in this case the jury's verdict was responsive to the

single charge contained in the information." (Emphasis added.) Taylor, 212

Kan. at 784.

And in Statler, the U.S. Supreme Court permitted a deviation from the text of the

verdict form only if the "record leaves no room for doubt" that the strict text of the

verdict did not accurately reflect the jury's intent. 157 U.S. at 280.

Synthesizing these various descriptions, we hold that a district judge may only

invoke the surplusage rule to discard parts of the verdict form that are inconsistent with

the jury's intent as follows. First, the district court must start with a strong presumption in

favor of the literal text of the verdict form and only move to interpretation when the

record as a whole necessarily creates doubt as to its meaning. Secondly, the district court

may consider anything in the record that tends to show with certainty what the jury

intended. Finally, only if the district court is convinced, beyond a reasonable doubt, that

the record as a whole clearly demonstrates the intent of the jury can the court discard

contrary surplusage in the jury's verdict. Appellate courts will review a district court's

application of the surplusage rule de novo.

Applying this newly articulated standard, we conclude: (1) the record as a whole

necessarily creates doubt as to the meaning of the jury's verdict; (2) aspects of the record

demonstrate the jury's intent with certainty; and (3) we are convinced (as was the district

court) beyond a reasonable doubt that the jury intended to convict Brown of attempted

voluntary manslaughter. Therefore, the district court did not err when it discarded the

prefix "in-" from the verdict form as mere surplusage.

16

In reaching this decision, we have considered the following portions of the record

as decisive:

 The crime of attempted involuntary manslaughter was never at issue during

trial.

 Defense counsel requested an "attempted voluntary manslaughter"

instruction, and his proposed verdict form said the same.

 Instruction No. 7 correctly named the lesser included offense of "attempted

voluntary manslaughter" and listed its elements.

 Instruction No. 11 correctly summarized the verdict options and stated

"attempted voluntary manslaughter" as the lesser included offense.

 The district court correctly read the instructions to the jury, including

Instructions No. 7 and No. 11.

 Until closing argument, the court and parties only mentioned "attempted

voluntary manslaughter" on the record.

 During closing argument, defense counsel mistakenly said "attempted

involuntary manslaughter" but the district court instantly corrected him,

saying, "Excuse me, you said 'involuntary.' You meant 'voluntary.'"

Defense counsel thanked the court and said, "I meant 'voluntary.'"

17

 The verdict form referred to the correct jury instruction: "We, the jury, find

the defendant guilty of the lesser offense of attempted involuntary

manslaughter as set forth in Instruction No. 7."

We do not take the decision to discard portions of the jury verdict as surplusage

lightly and pause here to emphasize again the strong presumption in favor of the literal

text of the jury verdict as the surest guide to the jury's intentions. That presumption can

only be overcome when the record as a whole clearly demonstrates a different intent and

the district court is convinced beyond a reasonable doubt that portions of the verdict text

are inconsistent with that intent.

Reversed.