PD-1012-16 01/11/2017
- "In reviewing sufficiency of the evidence, did the court of appeals err by:
during its review of the sufficiency of the evidence to support a capital allegation that Appellant committed murder while in the course of kidnapping or attempting to kidnap the victim?"
- failing to consider any reasonable inferences that could be drawn from the evidence,
- separating evidence about the crime scene from evidence about the relationship between Appellant and the victim as a whole,
- speculating on evidence that was not offered by the State, and
- speculating on a hypothesis that was inconsistent with the defendant's guilt,
- "In considering the 'grey area' of criminal attempt law between acts that are simply mere preparation to commit an offense and acts that tend to effect the commission of an offense, may a reviewing court reject a jury's verdict during a sufficiency of the evidence review simply because the reviewing court would have drawn the 'imaginary line' in a different location than the jury?"
Bush was convicted of the capital murder of Monique Reiter in the course of committing or attempting to commit kidnapping. Bush and Reiter were romantically involved for five years before Reiter cut off communication with him. Bush's calls and texts went unanswered, but he started an online relationship with Reiter through a Facebook page he created using the name of someone with whom she went to school, "Rocky Switzer." Reiter and "Switzer" planned to meet the night she went missing. Phone records show that Bush and Reiter spoke the evening she disappeared, both were at the parking lot in which her car was found, and both were later at the site where her body was found naked in a shallow grave. Records also show Bush was near the site the next morning. Two months prior, Bush researched drugs that would knock a person out. After her death, Bush admitted to seeing her that evening at the parking lot, claimed to have had sex with her that night, and had a shovel and refrigerant in his truck. Refrigerant can cause an individual to die by asphyxiation.
The court of appeals reversed, reformed the judgment to murder, and remanded for a new punishment hearing. Because Reiter's time of death was not established, it concluded that there was no evidence showing that she was moved or confined without consent while alive. The court also rejected the State's alternative argument that attempted kidnapping was proven beyond a reasonable doubt; even if numerous acts show an intent to kidnap her, they did not go beyond "mere preparation."
In two points, that State argues that the court of appeals's analysis for both completed and attempted kidnapping was flawed because it did not view the evidence in the light most favorable to the verdict. For example, the court did not address the fair inferences that could be drawn from Bush's unsolicited use of "abduction" to discuss Reiter's disappearance, a voicemail he left two days prior warning her about people trying to drug her drink, and his inquiries into obtaining a gun from family and the purchase of suitable ammunition the day of the offense despite Reiter having suffered no gunshot wounds. The State argues that the court's failure either caused or was compounded by the court's willingness to entertain the alternate theory that Reiter met Bush at the parking lot and left with him willingly. The court also viewed details regarding their past relationship and the complexity of Bush's scheming in isolation instead of determining whether the evidence, viewed collectively, proved the offense. With regard to attempt, the State argues that it is the jury's prerogative to determine whether acts that do not embrace the penultimate act of the intended offense are more than mere preparation.
