Opinion
No. 112,010.
02-05-2016
STATE of Kansas, Appellee, v. William J. OUTHET, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
William J. Outhet appeals his convictions of attempted premeditated first-degree murder and arson. Outhet claims that his due process rights were violated because the district court's instruction and the prosecutor's statements on the overt acts in the commission of attempted murder were broader than the specific overt acts charged in the complaint. Outhet also claims that the State failed to bring him to trial within 90 days of arraignment, constituting a violation of his statutory right to a speedy trial. We agree with Outhet's speedy trial claim on the arson charge, but we affirm Outhet's conviction of attempted first-degree murder.
Factual And Procedural Background
On February 1, 2013, at 3:30 p.m., Olathe Police Officers Christopher Curtis and Matthew Fletcher were dispatched to a residence on North Martway Drive in Olathe, Kansas, for a report of a structure fire. The police later discovered that Outhet and Larry Nickelson lived at the residence. The fire was concentrated in the garage at the front of the residence. As Curtis approached the residence, a couple of people at the back told him that they had seen a person at an upper floor window on the northeast side of the house. Curtis did not see anyone in the window, but he yelled at anyone upstairs to put their head out the window so he could assist them in getting out of the house. Curtis did not receive a response.
Fletcher began looking through the backyard of adjoining properties for a ladder to put up to the second floor window. While he was doing this, he heard an explosion from the residence. Fletcher went back to the residence, evacuated bystanders in the immediate area, and yelled toward the back window, “Sir, can you hear me?” There was no response, but a moment later Fletcher heard another explosion and saw glass fall from the second floor window.
When firefighters arrived, Curtis directed them to the back upstairs window where bystanders had reported seeing a person inside the house. Curtis heard an explosion when the firefighters put a ladder up to the second floor window; however, he did not know what caused this explosion. Fletcher also heard the explosion as the firefighters began putting a ladder up to the second floor window. Fletcher was wearing a belt recorder that afternoon. Later, after listening to the explosions on the belt recorder, Fletcher and Curtis believed the explosions were consistent with gunshots.
Olathe Firefighter Eric Dossett was dispatched to the fire. After he was informed that there were one or two people in the residence, he decided to conduct a “vent, enter, search.” The firefighters placed a ladder directly below the window on the northeast side of the house. A few seconds after they placed the ladder against the home, Dossett heard a loud and distinct pop. He surveyed the back of the residence but was unable to determine what caused the pop. After a taller ladder was put in place, Dossett climbed the ladder and used a tool to break the window. Dossett conducted a thermal imaging scan of the room, removed the rest of the window, tested the floor to make sure it was sturdy, and entered the room.
The room was full of smoke and there was no visibility. Dossett searched the room on his hands and knees. He located a subject on top of the bed in the room. Immediately after Dossett discovered the individual, additional crews entered the room from the hallway and the visibility improved. Once the visibility improved, Dossett saw Outhet lying on the bed with a shotgun lying across his chest. The barrel of the gun was at his left shoulder and the butt at his right hip. There was also a handgun lying next to Outhet's left hip. Dossett noticed several unspent shotgun shells by Outhet's left hip as well as numerous brass rounds.
Dossett went back to the window to advise firefighters outside that Outhet was being removed from the house. As he went back to the window, Dossett noticed a hole in the wall to the left of the window and another hole in the soffit in the center of the window. Both holes appeared to be made by a shotgun blast. After Dossett observed these holes, he informed his battalion chief that he believed the firefighters had been shot at by someone inside the residence. Dossett also noticed several additional long-barreled guns in the corner of the room between the bed and a wall. He did not find any other person in the house.
Olathe Police Crime Scene Unit Detective Mike Ross processed the residence the next day. He located a rifle in the living room and ammunition on a coffee table. There were two guns in the dining room. In an upstairs bedroom, there was a rifle on a bed, which was loaded and had ammunition next to it. There were also more rifles in the closet and a pistol in a cabinet. In the second bedroom, there was a gun on the floor and two guns in a corner. There was ammunition and another gun on the bed. More ammunition and a pistol belt were also in the bedroom. Ross recovered two spent rounds and one live round from the floor of one of the bedrooms. Another spent round was found on the bed. Ross also observed a mirror in the bedroom that was damaged, which he believed was caused by a gunshot.
Gary Nickerson, a senior fire inspector for the Olathe Fire Department, also processed the residence. He collected a red gas can from the living room, which firefighters had previously discovered. He also located a red toaster filled with paper in the kitchen. Nickerson also collected carpet samples from the hallway and dining room area, the steps that led into the kitchen, the living room, and the stairs that led down to the garage. Nickerson determined that the fire was caused by arson.
On February 15, 2013, the State charged Outhet in 13CR381 with one count of arson and one count of attempted premeditated first-degree murder. The district court held a preliminary hearing on April 19, 2013. After hearing the evidence, the district court bound Outhet over on the arson charge. However, the district court found that the State had failed to meet its burden as to the attempted murder charge, and the district court dismissed that charge. Outhet was arraigned on the arson charge on April 19, 2013, and the district court scheduled a trial for May 13, 2013.
The State filed a motion for the district court to reconsider its dismissal of the attempted first-degree murder charge. After hearing argument of counsel, this motion was denied on May 31, 2013. At that time, the State dismissed the arson charge in 13CR381. The State immediately refiled the two charges on May 31, 2013, in case 13CR1223.
The district court held a preliminary hearing in 13CR1223 on July 23, 2013. This time, after hearing the evidence, the district court bound Outhet over for trial on both counts. Outhet was arraigned on both charges on July 23, 2013, and the district court initially scheduled the case for trial on August 26, 2013.
On September 9, 2013, Outhet filed a motion to dismiss for violation of his speedy trial rights. Outhet argued there was no necessity for the State to dismiss the arson charge; thus, the new case should be dismissed. The State responded that the dismissal was necessary because it could not have refiled the attempted premeditated murder charge in a separate case and proceeded independently with the arson charge without violating Outhet's double jeopardy rights. Alternatively, the State argued that even if there was not a necessity to dismiss and refile the charges, Outhet's right to a speedy trial had not been violated once the appropriate time was charged to him. After hearing argument from counsel, the district court found that the dismissal of the arson charge in 13CR381 was necessary to proceed with both counts in one case rather than each count in separate cases. Therefore, the district court denied Outhet's motion to dismiss.
A jury trial began on March 4, 2014. Curtis, Fletcher, Dossett, Ross, Nickerson, and other emergency responders testified for the State. Nickelson, Outhet's roommate, also testified. Nickelson testified that when he left for work at 6:30 a.m. on February 1, 2103:(1) He did not remember if the gas canister was in the entryway of the front room, but it would normally be in the basement; (2) he did not believe there were papers stuffed in the toaster when he left, and it would not be normal for papers to be stuffed in the toaster; (3) there were no weapons lying on the floor in the dining room when he left, they should have been in a case on the upper shelf of Nickelson's bedroom closet; (4) the scoped rifle was not on his bed, it should have been in a case in the back corner of his closet; (5) ammunition for this weapon was kept underneath the TV in the bedroom and not on his bed; (6) all of the guns were stored unloaded except a .380 pistol, which was kept beside his bed for protection; (7) all of the windows were closed except for one that he opened while he showered to let the humidity out; and (8) there were no holes in the soffit or the side of the house.
Marilyn Whitaker testified that she worked at the CVS Pharmacy at 119th Street and Ridgeview in Olathe. She testified that Outhet came into the store on February 1, 2013, and purchased cigarettes with buffalo nickels. As Outhet left, she told him to have a great day and Outhet replied that he was done. Rita Ann Hoffman, Outhet's neighbor, testified about a prior occasion when Outhet became very angry because his daughter had to go to juvenile court. Outhet yelled at Hoffman that he had to hire an attorney and go to court. He told Hoffman that he hated everyone who worked for the government, “[e]ven those fire trucks, those guys in the fire trucks that come here.”
DNA analysis of a shell found on a bed revealed DNA that matched Outhet's DNA with a probability of 1 in 8.189 quintillion. Analysis of a 12–gauge shotgun round revealed a partial male DNA profile from which Outhet could not be excluded as the source, but Nickelson was excluded as the source. The probability of selecting an unrelated individual from the population whose DNA could be excluded was 1 in 7,226. Analysis of a Remington shotgun produced a major profile and minor mixture of DNA. Outhet could not be excluded as a provider of the major profile, but Nickelson could be excluded. The probability of selecting an unrelated individual from the population who could not be excluded as a provider of the major profile was 1 in 527,900.
Jason Buttell, a firearm and tool mark examiner for the Johnson County Crime Lab, performed firearm and tool mark analysis in this case. Buttell tested a 12–gauge shotgun, a 30/30 caliber Winchester rifle, and a Winchester Model 94AE. Buttell analyzed two spent 12–gauge shells and one unfired shell and determined that the spent shells were discharged from the 12–gauge shotgun. Buttell also analyzed the soffit. The soffit contained several small pellets that came from “shot” and an opaque-colored plastic wad, which encapsulated and protected the shot as it went down the bore of the shotgun. Based on this analysis, Buttell concluded that the soffit was damaged by the discharge of a shotgun. Although he could not determine if the damage was caused by the shotgun that was recovered from the residence, the pellets and wad found in the soffit were consistent with pellets and wad used in shells for the shotgun.
Bradley Henson, the division chief fire marshal for the Olathe Fire Department, testified that the fire in Outhet's house originated in the garage. He concluded that the cause of the fire was determined to be intentional based in part on the gas can in the living room (which contained gasoline) and the toaster with papers stuffed in it.
The jury convicted Outhet of both counts. On May 1, 2014, the district court sentenced Outhet to 165 months' imprisonment for attempted premeditated first-degree murder and 19 months' imprisonment for arson. The district court ordered the sentences to run consecutively for a controlling sentence of 184 months' imprisonment and 36 months' postrelease supervision. Outhet timely appealed the district court's judgment.
On appeal, Outhet claims that his due process rights were violated because the district court's instruction and the prosecutor's statements on the overt acts in the commission of attempted murder were broader than the specific overt acts charged in the complaint. Outhet also claims that the State failed to bring him to trial within 90 days of arraignment, constituting a violation of his statutory right to a speedy trial. We will address Outhet's claims in reverse order.
Speedy Trial Claim
Outhet argues that his statutory right to a speedy trial was violated because he was not brought to trial within 90 days of arraignment. Specifically, he argues the time from arraignment to the dismissal of 13CR381 must be added to the time from arraignment until trial in 13CR1223 because the State failed to show necessity for dismissal of the original case. He claims that the State was required to bring him to trial on both charges within 90 days of the arraignment of 13CR381 and the State failed to do so.
In response, the State argues that the arson charge in 13CR381 was dismissed out of necessity because it was the only way the State could add additional language to the charging document on the attempted murder charge and provide more evidence at a second preliminary hearing while keeping the two charges together in a single case. Thus, the State argues that the time charged to the State in 13CR381 should not be added to the time charged to the State in 13CR1223. Alternatively, the State argues that even if the two cases are counted together, Outhet was brought to trial within the 90–day period required by the speedy trial statute.
Whether a defendant's statutory right to a speedy trial has been violated is a question of law subject to de novo review. State v. Brownlee, 302 Kan. 491, 506, 354 P.3d 525 (2015). K.S.A.2012 Supp. 22–3402(a) provided:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant or a continuance shall be ordered by the court under subsection (e).”
There is no dispute that Outhet was held in custody pending his trial and the State makes no claim that he was being held in jail for reasons other than the charges in this case. We note that under K.S.A.2014 Supp. 22–3402(a), the State now is allowed 150 days after arraignment to bring a defendant who is held in custody to trial. However, both parties acknowledge that under the statute in effect at the time of this case, the State was required to bring Outhet to trial within 90 days of arraignment.
We first will address the State's alternative argument that Outhet was brought to trial within 90 days even if the time in the two cases are added together. The State argues it was ready for trial on the first date offered after arraignment in 13CR381, May 13, 2013, and only 25 days should be charged to the State in that case. In 13CR1223, the State argues that it was ready for trial on August 26, 2013, and only 35 days should be charged to the State in that case. Thus, the State claims that it should only be charged with 60 days in both cases, which is well within the 90–day statutory speedy trial limit.
Outhet has filed no reply brief contesting the State's calculation of time. Nevertheless, we have carefully reviewed the record and conclude that the proper amount of time charged to the State on the arson count when adding the two cases together exceeds 90 days. Our calculations are as follows:
Statutory Speedy Trial Timeline–Arson Charge
I. 13CR381—April 19, 2013—Preliminary Hearing—Outhet arraigned on arson charge.
1. April 19, 2013–May 13, 2013 (arraignment to first offered trial date)—charged to the State—24 days.
2. May 13, 2013–May 31, 2013 (date motion to reconsider was denied and arson charge dismissed by State)—charged to Outhet—18 days.
II. 13CR1223—July 23, 2013—Preliminary Hearing—Outhet arraigned for second time on arson charge.
1. July 23, 2013–August 26, 2013 (arraignment to first offered trial date)—charged to the State—34 days.
2. August 26, 2013–September 23, 2013 (trial continuance)—charged to Outhet—28 days.
3. September 23, 2013–October 28, 2013 (continuance from trial to scheduling conference due Outhet's medical emergency)—charged to Outhet—35 days.
4. October 28, 2013–January 13, 2014 (scheduling conference to first trial date offered)—charged to Outhet—77 days.
5. January 13, 2014–January 27, 2014 (first trial date offered to second trial date offered)—charged to the State—14 days.
6. January 27, 2014–Februrary 3, 2014 (second trial date offered to third trial date offered)—charged to Outhet—7 days.
7. February 3, 2014–March 3, 2014 (continuance due to State's witness being unavailable and district court ordering mediation)—initially charged to “the Court” but later charged to the State—28 days.
8. March 3, 2014–March 4, 2014 (1–day continuance caused by snow storm agreed to by Outhet)—charged to Outhet—1 day.
III. Total amount of time charged to the State (24 days in 13CR381 + 76 days in 13CR1223)—100 days.
In his speedy trial claim, Outhet makes no distinction between the arson charge and the attempted murder charge, and he argues that his statutory speedy trial right was violated as to both charges. But Outhet was never arraigned for attempted murder in 13CR381, which would have triggered the statutory speedy trial calculations in that case. Outhet was not arraigned for attempted murder until July 23, 2013, in 13CR1223. He was brought to trial on that charge on March 4, 2014, and only 76 days of that time period was charged to the State. Thus, there was no statutory speedy trial violation as to the attempted murder charge.
As to the arson charge, 24 days are charged to the State in 13CR381 and 76 days are charged to the State in 13CR1223, for a total of 100 days, which exceeds the statutory speedy trial deadline. The State argues that 13CR381 was dismissed out of necessity and, as a result, the time charged to the State in 13CR381 should not be added to the time charged to the State in 13CR1223 in order to determine whether Outhet's statutory speedy trial right was violated.
As a general rule, “[t]he State, in dismissing and refiling identical charges in a criminal action, may avoid the statutory speedy trial limitations only if there is an adequate showing of necessity and there is no evidence the State was attempting to manipulate the speedy trial requirement.” State v. Clovis, 254 Kan. 168, Syl. ¶ 1, 864 P.2d 687 (1993). If the State dismisses a criminal case and refiles identical charges without showing necessity for doing so, the time charged to the State in the first case is added to the time charged in the second case. State v. Jamison, 248 Kan. 302, 304, 806 P.2d 972 (1991). However, if the State makes a showing of necessity, computation of the statutory speedy trial deadline starts anew upon the filing of the second case. 248 Kan. at 304; see State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989).
Here, on February 15, 2013, the State charged Outhet in 13CR381 with one count of arson and one count of attempted premeditated first-degree murder. The district court held a preliminary hearing on April 19, 2013. After hearing the evidence, the district court bound Outhet over on the arson charge. However, the district court found that the State had failed to meet its burden as to the attempted murder charge, and the district court dismissed that charge. The State could have voluntarily dismissed the arson charge at that time, but the State elected to proceed with arraignment on the arson charge on April 19, 2013. The State ultimately dismissed 13CR381 on May 31, 2013, and immediately refiled the two charges in 13CR1223. The district court held a preliminary hearing in 13CR1223 on July 23, 2013. This time, after hearing the evidence, the district court bound Outhet over for trial on both counts.
The State presented virtually the same evidence against Outhet on the attempted murder charge at both of his preliminary hearings. In 13CR381, the State charged Outhet with attempted murder based on the following overt acts: “staging firearms around the residence and firing shots from a shotgun” at emergency personnel. In 13CR1223, the State charged Outhet with attempted murder based on the following overt acts: “staging firearms around the residence, setting fire to the residence ..., or firing a shotgun” at emergency personnel. The district court found the evidence was sufficient to bind Outhet over for trial on attempted murder based on the language in the second complaint, but not based on the language in first complaint. As will be discussed in the next section of this opinion, the State was not required to allege in the complaint the overt acts supporting the attempted murder charge.
In district court, the State argued that dismissal of the arson charge in 13CR381 was necessary because the State could not have refiled the attempted murder charge in a separate case and proceeded independently with the arson charge without violating Outhet's double jeopardy rights. However, the State does not reassert the double jeopardy argument on appeal. An issue not briefed by a party is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
On appeal, the State initially argues that dismissal of the arson charge in 13CR381 was necessary so the State could appeal the district court's decision to dismiss the attempted murder charge for lack of probable cause. But, of course, the State never pursued an appeal of the dismissal of the attempted murder charge. The State goes on to argue that dismissal was necessary so it could refile the attempted murder charge and obtain a second preliminary hearing while keeping the two charges in a single case.
If the only reason for dismissal of 13CR381 was to keep the two charges together in a single case, the State could have accomplished this feat by simply dismissing the arson charge when the district court dismissed the attempted murder charge at the first preliminary hearing. Instead, the State elected to proceed with arraignment on the arson charge on April 19, 2013, which triggered the statutory speedy trial clock on that charge. However, this decision does not relieve the State of the responsibility of bringing Outhet to trial on the arson charge within 90 days of the initial arraignment, absent a showing of necessity for the dismissal and refiling of the arson count in two separate cases.
It does not appear that the State dismissed 13CR381 and refiled 13CR1223 as “a subterfuge engaged in by the State to avoid dismissal under the speedy trial statute.” See Goss, 245 Kan. at 192. However, in dismissing and refiling identical charges in a criminal action, the State may avoid the statutory speedy trial limitations only if there is an adequate showing of necessity and there is no evidence the State was attempting to manipulate the speedy trial requirement. See Clovis, 254 Kan. 168, Syl. ¶ 1. On appeal, the State offers no sound legal argument why it was necessary to dismiss the arson charge in 13CR381 and refile the identical charge in 13CR1223. The State's meager explanation that it wanted “to keep the [arson and attempted murder] together” fails to establish sufficient necessity for dismissing and refiling the arson charge in two separate cases.
In summary, 24 days are charged to the State on the arson count in 13CR381 and 76 days are charged to the State in 13CR1223 for a total of 100 days in both cases. The State has failed to establish an adequate showing of necessity for dismissing and refiling the arson charge in two separate cases. As a result, the State failed to bring Outhet to trial on the arson charge within the amount of time allotted by K.S.A.2012 Supp. 22–3402(a). Accordingly, we conclude the district court erred in denying Outhet's motion to dismiss the arson charge based on a violation of his statutory speedy trial rights. Outhet's conviction of arson is reversed and his 19–month sentence on that conviction is vacated.
Attempted First–Degree Murder Conviction
Outhet also claims that his due process rights were violated because the district court's instruction and the prosecutor's statements on the overt acts in the commission of attempted murder were broader than the specific overt acts charged in the complaint. Outhet's argument in this section of his brief is somewhat confusing. However, Outhet frames the argument primarily as an error in the jury instruction given by the district court. Outhet points out that the language in the complaint on the charge of attempted murder specified three specific overt acts supporting the charge. However, Outhet argues that the instruction was broader because it allowed the jury to convict him of attempted murder if it found he committed any overt act toward the perpetration of the crime.
The State argues that the district court did not err in instructing the jury because the State is not required to allege facts in the charging document to establish the overt acts and the jury is not required to unanimously agree upon which overt act the defendant committed. In the alternative, the State notes that Outhet did not object to the jury instruction at trial and any error in the instruction was not clearly erroneous.
An appellate court typically exercises unlimited review over a challenge to a jury instruction when the gravamen of the complaint concerns a constitutional due process challenge. State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007). However, when the defendant fails to object to the jury instruction, this court applies the clearly erroneous standard despite the fact that the issue is a constitutional due process challenge. See K.S.A.2015 Supp. 22–3414(3); State v. Williams, 295 Kan. 506, 515–17, 286 P.3d 195 (2012). Because Outhet did not object to the instruction, the clearly erroneous standard applies. That standard requires this court to first consider whether there was any error at all by considering whether the instruction at issue was both legally and factually appropriate, employing an unlimited review of the entire record. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484, cert. denied 135 S.Ct. 728 (2014). If the court finds error, it then must assess whether it is firmly convinced the jury would have reached a different verdict without the error. 300 Kan. at 408.
The Kansas Supreme Court has held that jury instructions should be confined to the issues in the pleadings and should not be narrower or broader than the information. State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). This rule is required because the charging document sets out the specific offense alleged against the defendant, which informs the defendant of the nature of the accusations being brought and protects the defendant from being convicted on the basis of facts that were not provided in the initial charging document. 289 Kan. at 802. Therefore, “the State is bound by the wording of its charging document, and the prosecution and district court must use caution in conforming the jury instructions to the charges.” State v. McClelland, 301 Kan. 815, 828, 347 P.3d 211 (2015) (citing State v. Haberlein, 296 Kan. 195, 210–11, 290 P.3d 640 2012 ).
However, the State is correct that it was not required to allege in the complaint the overt acts supporting the attempted murder charge against Outhet. In State v. Sweat, 30 Kan.App.2d 756, 48 P.3d 8, rev. denied 274 Kan. 1118 (2002), the defendant was convicted of both attempted first-degree murder and conspiracy to commit first-degree murder. On appeal, the defendant challenged the sufficiency of the complaint which failed to specify the overt acts supporting either charge. This court found the complaint was defective as to the conspiracy charge because K.S.A. 21–3302(a) requires overt acts to be alleged in a complaint charging the defendant with conspiracy. 30 Kan.App.2d at 760–61. However, the court further concluded that the complaint was sufficient as to the attempted first-degree murder charge because there is no requirement in the applicable statute for any overt acts to be alleged in the complaint in order to charge an attempted first-degree murder. 30 Kan.App.2d at 761–62. In reaching this conclusion, our court cited and relied upon our Supreme Court's decision in State v. Humphrey, 252 Kan. 6, 28, 845 P.2d 592 (1992) (holding that State was not required to allege overt acts in the complaint charging defendant with attempted murder).
Outhet's claim that his due process rights were violated because the district court's instruction on the overt acts in the commission of attempted murder were broader than the overt acts alleged in the complaint is without merit because the State was not required to allege any overt acts in the complaint in the first place. Here, the district court gave the standard PIK instruction on the attempted first-degree murder charge. This instruction allowed the jury to find Outhet guilty if he performed “an overt act” toward the commission of murder in the first degree. See PIK Crim. 4th 53.010 (attempt). The instruction also provided an explanation of the term “overt act.” See PIK Crim. 4th 53.010. Although the use of PIK instructions is not required, it is strongly recommended. See State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). Here, the district court committed no error in giving the jury instruction on attempted first-degree murder, much less clear error.
In sum, Outhet's claim that his due process rights were violated because the overt acts in the jury instruction were broader than the overt acts alleged in the complaint is without merit. Outhet raises no other argument challenging his conviction of attempted first-degree murder. Thus, we find no error in Outhet's conviction of attempted murder.
Affirmed in part, reversed in part, and vacated in part.