Volume 311, No. 2 Opinions Filed in March - May 2020

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REPORTS

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER:

SARA R. STRATTON

Advance Sheets, Volume 311, No. 2 Opinions filed in March - May 2020

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For the use and benefit of the State of Kansas

JUSTICES AND OFFICERS OF THE KANSAS SUPREME COURT

_____

CHIEF JUSTICE:

HON. MARLA J. LUCKERT ...... Topeka

JUSTICES:

HON. CAROL A. BEIER ...... Wichita HON. ERIC S. ROSEN ...... Topeka HON. DAN BILES ...... Shawnee HON. CALEB STEGALL ...... Lawrence HON. EVELYN Z. WILSON ...... Smith Center

OFFICERS:

Reporter of Decisions………….……….……SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator ...... NANCY DIXON Disciplinary Administrator ...... STANTON A. HAZLETT

(III)

IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

2020-RL-26

RULES RELATING TO SUPREME COURT, COURT OF APPEALS, AND APPELLATE PRACTICE

Supreme Court Rule 7.03 is hereby amended, effective the date of this order.

Rule 7.03

DECISION OF APPELLATE COURT

(a) Decision. A decision of an appellate court will be announced by the filing of the opinion with the clerk of the appellate courts. The opinion will be electronically filed. On the date of filing, the clerk of the appellate courts will send one copy of the decision to the party if the party has appeared in the appellate court but has no counsel of record and will provide notice of the decision one copy to the judge of the district court from which the appeal was taken. A certified copy of the opinion will be mailed to the clerk of the district court when the mandate issues.

(b) Mandate. A mandate must be mailed to the clerk of the district court, accompanied by a certified copy of the opinion.

(1) Issuance and Effective Date.

(A) When Issued. An appellate court’s mandate will issue 7 days after:

(i) the time to file a petition for review or motion for rehearing or modification expires;

(ii) entry of an order denying a timely petition for review or motion for rehearing or modification; or

(iii) any other event that finally disposes of the case on appeal.

(B) Court May Modify Time. The court may shorten or extend the time for issuing the mandate.

(2) Staying the Mandate. The timely filing of a petition for review or a motion for rehearing or modification stays the

(IV)

mandate until disposition of the petition or motion, unless the court orders otherwise.

Dated this 30th day of March 2020.

FOR THE COURT:

______MARLA LUCKERT Chief Justice

(V)

IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

2020-RL-038

RULES RELATING TO THE STATE BOARD OF EXAMINERS OF COURT REPORTERS

Supreme Court Rule 365 is hereby amended, effective the date of this order.

Rule 365

Orders A request for preparation of a transcripts from an electronic recordings shall must be made to filed with the clerk of the district court. A copy of the request must also be served on the managing court reporter or the court reporter designated by the clerk of the district court. The rates charged by the clerk for such the transcripts shall will be the same as the rate authorized for a transcripts prepared by an official court reporters.

th Dated this 15 day of April 2020.

FOR THE COURT

______MARLA LUCKERT Chief Justice

(VI)

Kansas Supreme Court Table of Cases 311 Kan. No. 2

In re Joint Application of Westar Energy and Kansas Gas and Electric Co...... 320 In re Mayes ...... 280 In re Quinn ...... 318 Kelly v. Legislative Coordinating Council ...... 339 State v. Broxton ...... 357 State v. Jacqueline Coleman(115,293) ...... 305 State v. Kevin Coil Coleman(118,673)...... 332 State v. Collins ...... 418 State v. Corbin...... 385 State v. Craig ...... 456 State v. Espinoza ...... 435 State v. Frazier ...... 378 State v. Galloway ...... 238 State v. Gonzalez ...... 281 State v. Harris ...... 371 State v. Lemmie ...... 439 State v. Parker ...... 255 State v. Randle ...... 468 State v. Sesmas ...... 267 State v. Thomas ...... 403 State v. Uk ...... 393

(VII)

PETITIONS FOR REVIEW OF DECISIONS OF THE COURT OF APPEALS 311 Kan. No. 2

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Batman v. Deutsch ...... 117,101 Denied ...... 03/25/2020 Unpublished State v. McDowell ...... 121,707 Denied ...... 04/09/2020 Unpublished State v. Quinn ...... 117,286 Denied ...... 03/30/2020 Unpublished

(VIII) SUBJECT INDEX 311 Kan. No. 2 (Cumulative Subject Index for 1 and 2. Subject Index for this advance sheet marked with *.

PAGE

APPEAL AND ERROR:

Cumulative Error Doctrine—No Relief if Single Error. Relief under the cumulative error doctrine cannot be predicated upon a single error. State v. Becker ……………………………………………………….....… 176

Defendant with Intellectual Disability—Appellate Review. An appellate court reviews a district court's ruling under K.S.A. 2019 Supp. 21-6622(b) (reason to believe defendant is a person with intellectual disability) for abuse of discretion. The party arguing an abuse of discretion bears the burden of establishing that abuse. State v. Corbin …………………..…….385*

Developments in Law While Case Pending May be Claimed. A defendant may claim the benefit of developments in the law occurring while his or her case is pending on direct appeal. State v. Broxton …………………357*

Exception to Preservation Rule—Appellate Review. The decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, this court has no obligation to do so. State v. Gray ………………………………..…. 164

Motion to Withdraw Guilty Plea—Appellate Review. When reviewing a district court's consideration of a motion to withdraw a guilty plea before sentencing, an appellate court does not reweigh evidence or reassess witness credibility, but will reverse the lower court only for an abuse of discretion. State v. Newman ……………………………………………………...... 155

Plea of Guilty or Nolo Contendere Does Not Prevent Direct Appeal of Sentence. One who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602(a) from taking a direct appeal from the sentence imposed. State v. Smith ……………………………………………………….….. 109

Review of Issues Argued First Time on Appeal—Limited Exceptions. Generally, an appellate court does not address issues for the first time on appeal, but there are limited exceptions within defined parameters. State v. Harris …………………………………………………...…… 371*

APPELLATE PROCEDURE:

Burden on Appellant to Designate Record. An appellant bears the burden of designating a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Galloway …………………………………………….. 238*

Preservation of Constitutional Issue for Appeal. A constitutional issue generally requires a specific challenge at trial in order to preserve it for appeal. State v. Galloway …………………………………………..…… 238*

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ATTORNEY AND CLIENT:

Disciplinary Proceeding—Disbarment. Attorney was disciplined by disbarment following the voluntary surrender of his license to practice law in Kansas. Respondent violated rules involving competence, communication, conflict of interest, and misconduct. In re Mayes ………………….... 280*

— Order of Reinstatement. Attorney filed petition for reinstatement of license after indefinite suspension. Hearing panel recommends reinstatement subject to certain conditions. Supreme Court granted reinstatement. In re Quinn ………………………………………………….………. 318*

— Two-year Suspension. Attorney was disciplined with a two-year suspension for violations of KRPC 1.1, 1.3, 1.4(a) and (b), 4.1(a), and 8.4(c), (d), and (g). Respondent may petition for early reinstatement after 9 months of the suspension. In re Kupka …………………………….… 193

— — Attorney was disciplined with a two-year suspension for violations of KRPC 1.7(a)(2), 1.8(e), 3.4(c), and 8.4(d). Respondent must undergo a Rule 219 hearing if requests reinstatement. In re Saville …………………………………………….……………... 221

CONSTITUTIONAL LAW:

Fundamental Right to Trial by Jury. The right to trial by jury is a fundamental right. State v. Harris ……………………………..………...….371*

Right to Public Trial for Criminal Defendant. Both the United States Constitu- tion and Kansas statutory law guarantee a criminal defendant the right to a public trial. The concept of a public trial implies that doors of the courtroom be kept open and that the public, or such portion thereof as may be conveniently accommodated, be admitted, subject to the right of the court to exclude objectionable characters. State v. Galloway ………………………………………………………… 238*

Waiver of Right to Jury Trial—Before the right to jury trial can be waived, a defendant must be advised of the right. State v. Harris ………………….…. 371*

COURTS:

Court Must Address Defendant before Accepting Waiver of Jury Trial. While there is no particular checklist a district court must follow to ensure that a defendant knowingly and voluntarily waives the right to trial by jury, at minimum the district court must meaningfully address a defendant's apparent confusion or misunderstanding before accepting any purported waiver of that right. State v. Harris …………………………….……. 371*

Court Must Advise of Jury Trial Right. It is the district court's responsibility to advise a criminal defendant of his or her right to trial by jury. State v. Harris ………………………………………………….……. 371*

Expert Testimony—Consideration of Daubert Factors to Determine if Testimony Is Reliable. Under K.S.A. 2018 Supp. 60-456(b), the district

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court must have considerable leeway in deciding in a particular case how to determine whether expert testimony is reliable. The court should consider the specific factors identified in Daubert where they are reasonable measures of reliability. Whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the district court broad latitude to determine. State v. Lyman …….. 1

No Jurisdiction to Review Conviction from Guilty or Nolo Contendere Plea under K.S.A. 22-3602(a). Under K.S.A. 22-3602(a), a Kansas appellate court does not have jurisdiction to review a defendant's conviction from a guilty or nolo contendere plea. K.S.A. 22-3602(a) makes clear that, regardless of this prohibition, a defendant may still file a motion in the district court in accordance with the directives outlined in K.S.A. 60-1507, and appellate courts have jurisdiction to review a defendant's appeal from a ruling on such a motion. State v. Smith …………………………………..…… 109

CRIMINAL LAW:

Allegation of Speedy Trial Violation. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for the first time an alleged statutory speedy trial violation that occurred during the first trial. State v. Williams ……………………...... 88

Attempted Crime Conviction—Sufficiency of Evidence Analysis. To support a conviction for an attempted crime, the evidence must permit a rational fact-finder to find beyond a reasonable doubt the defendant intended to commit the particular crime alleged. State v. Gonzalez ….…. 281*

Burglary—Determination Whether Place Used for Human Habitation Constitutes Dwelling under Statute. Absent proof the place burgled was used as a human habitation, home, or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. State v. Downing ………………………………………………...…….. 100

Burglary Statute—Definition. Under K.S.A. 2018 Supp. 21-5807(a)(1), burglary is, without authority, entering into or remaining within any dwelling, with intent to commit a felony, theft, or sexually motivated crime therein. State v. Downing ……………………………………………………..... 100

— Statutory Definition of Dwelling. The term "dwelling" in K.S.A. 2018 Supp. 21-5807(a)(1) is defined in K.S.A. 2018 Supp. 21-5111(k) to mean "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." State v. Downing ………………………………...…………………….. 100

Challenge to Constitutionality of Sentence—Defendant's Obligation to Ensure Factual Record Developed in District Court. A defendant making an as-applied challenge to the constitutionality of a sentence under § 9

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of the Kansas Constitution Bill of Rights has an obligation to ensure an adequate factual record is developed in district court. If necessary, this requires the defendant to file a motion invoking the judge's duty to make findings of fact and conclusions of law under Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215). State v. Espinoza ………………..………………. 435*

Cumulative Error Doctrine Not Supported In This Case. The cumulative error doctrine does not support reversal of any of the defendant's convictions in this case. State v. Lemmie ………………….……………... 439*

Custodial Interrogation Statements Excluded Unless Miranda Warn- ings Given. Statements made during a custodial interrogation must be excluded under the Fifth Amendment to the United States Constitution unless the State demonstrates it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination. State v. Parker …………………………………………………..……. 255*

Defendant's Specific Intent Required to Convict under Aiding and Abetting Theory. To convict a defendant 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. State v. Gonzalez ……………… 281*

Exculpatory Evidence—Prosecutor's Duty to Disclose Evidence Favor- able to Accused—Three Elements. Three essential elements must exist in a claim alleging violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963): (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) it must be material so as to establish prejudice. State v. Lyman ………………………………………………………...... 1

Felony-Murder Statute—Not Unconstitutional. The Kansas felony-murder statute does not operate as an unconstitutional, conclusive presumption that invades the jury's province. State v. Patterson ……………………... 59

— Two Elements of Proof. The felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), requires proof that the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. Intent to kill is not an element of felony murder. State v. Patterson ……….… 59

Involuntary Statement by Defendant. A statement is not involuntary simply because a defendant was tired or under the influence of drugs; the condition must have rendered the defendant confused, unable to understand, unable to remember what had occurred, or otherwise unable to knowingly and voluntarily waive the right to remain silent. State v. Galloway ……………………………………………….…… 238*

Kansas Offender Registration Act—Definition of Deadly Weapon under KORA. A "deadly weapon," as that phrase is used in K.S.A. 2019 Supp. 22-4902(e)(2), means any firearm or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used,

311 KAN. SUBJECT INDEX XIII

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is calculated or likely to produce death. Substantial competent evidence supported the district judge's finding in this case that a Taser used by the aggravated robbery defendant was a deadly weapon. State v. Carter ...... 206

— Use of Deadly Weapon in Commission of Person Felony. A district judge's written journal entry showing that a defendant is a violent offender subject to the Kansas Offender Registration Act because he or she used a deadly weapon in the commission of a person felony is an adequate finding under the Act. State v. Carter …………………………………….……. 206

— Use of Weapon in Commission of Robbery under KORA. A defendant who displays a weapon to the victim of an aggravated robbery after obtaining the money in a store safe, but before leaving the store, brandishes the weapon and thus "uses" it in the commission of the robbery, as required by K.S.A. 2019 Supp. 22-4902(e)(2). State v. Carter ……….…………. 206

Kansas Sentencing Guidelines Act—Calculation of Criminal History Score Using Prior Out-of-State Convictions. The revised Kansas Sen- tencing Guidelines Act uses prior out-of-state convictions when calculating an offender's criminal history score. Under the version of the Act effective at the time Williams was sentenced, an out-of-state conviction is classified as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime. State v. Williams ……………………………………………………...... 88

— Calculation of Criminal History under Act. When calculating a person's criminal history, the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq., provides that convictions for crimes committed before Kansas designated crimes as person or nonperson offenses are to be classified as a person or nonperson offense by referring to comparable offenses in effect on the date the defendant committed the current crime of conviction. State v. Coleman ……………………….….. 305*

— Calculation of Criminal History under K.S.A. 2018 Supp. 21-6810. For a Kansas crime committed before Kansas designated crimes as person or nonperson offenses to be deemed comparable to a current offense under the Kansas criminal code, within the meaning of K.S.A. 2018 Supp. 21- 6810, the earlier crime's elements cannot be broader than the current crime's elements. In other words, the earlier crime's elements must be identical to, or narrower than, the elements of the crime to which it is being referenced. State v. Coleman ……….…………………………………………….. 305*

— Multiple-Conviction Case—"Present Crime of Conviction." For a multiple-conviction case, the phrase "the present crime of conviction" in K.S.A. 2015 Supp. 21-6810(d)(9) refers to a criminal defendant's current primary grid crime for which an accurate criminal history and the severity level of the crime determine the applicable base sentence under the Kansas Sentencing Guidelines Act. State v. Fowler …………………………… 136

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Miranda Violation Questions Distinct from Voluntariness Questions. Legal analysis of Miranda violation questions about criminal defendant confessions to law enforcement is distinct from legal analysis of Fifth Amendment voluntariness questions. State v. Sesmas ……………..… 367*

Motion for Immunity—State Must Establish Probable Cause Use of Force Not Justified. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant's use of force was not justified in accordance with K.S.A. 2019 Supp. 21-5222 under either or both of two scenarios: (a) the defendant did not honestly believe the use of force was necessary under the circumstances, or (b) a reasonable person would not believe the use of force was necessary under the circumstances. State v. Thomas ……………..…………….. 403*

Motion for Immunity from Criminal Prosecution—Court's Probable Cause Determination. A district court's probable cause determination under K.S.A. 2019 Supp. 21-5231 must be premised on: (a) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (b) the reasonable inferences to be drawn from any stipulations or the evidence. State v. Thomas ………………………………………... 403*

— Court Considers Totality of Circumstances. To decide a defendant's motion for immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State carried its burden to establish probable cause that defendant's use of force was not statutorily justified. State v. Collins ……….. 418*

— Court's Fact Findings for Probable Cause. A district court's probable cause fact finding under K.S.A. 2019 Supp. 21-5231 must be premised on: (a) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (b) the reasonable inferences to be drawn from any stipulations or the evidence. State v. Collins ………………….…. 418*

— Determination by District Court. To decide a defendant's motion for immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State carried its burden to establish probable cause that defendant's use of force was not statutorily justified. State v. Thomas …………….…….. 403*

— Determination Whether State Met Burden of Establishing Probable Cause. The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings. State v. Collins …………………………..……….…. 418*

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— District Court's Conclusions Must Be Supported by Factual Findings. The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings. State v. Thomas ………………………………………………………. 403*

— State Can Defeat By Establishing Probable Cause. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226(b) or (c). State v. Collins ……………….. 418*

— State Established Probable Cause to Defeat Motion. The term "probable cause" is described and applied in our caselaw somewhat differently depending on the context. For purposes of K.S.A. 2019 Supp. 21-5231, the State establishes the probable cause necessary to defeat a pretrial motion for immunity if the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt despite the defendant's claim of justified use-of- force immunity. State v. Collins ………….…………………….……. 418*

— State Must Establish Use of Force Not Justified. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant's use of force was not justified in accordance with K.S.A. 2019 Supp. 21-5222 under either or both of two scenarios: (a) the defendant did not honestly believe the use of force was necessary under the circumstances, or (b) a reasonable person would not believe the use of force was necessary under the circumstances. State v. Collins ……………………………………………………….. 418*

PIK Definition of Premeditation. PIK Crim. 4th 54.150(d) (2018 Supp.) accurately defines premeditation and adequately distinguishes premeditated intentional conduct from nonpremeditated intentional conduct. State v. Uk ……………………………………………………………. 393*

Post-Miranda Silence. The State is not permitted to impeach a defendant's version of events at trial with the defendant's post-Miranda silence. A fleeting violation of that rule in this case was harmless error, because the defendant's credibility was already thoroughly impeached by the State's evidence. State v. Sesmas …………………………………………….…. 267*

Probable Cause Standard for Statutory Immunity from Criminal Pros- ecution—Burden of Proof on State. Probable cause is the standard used to decide whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, which is the statute broadly encompassing justifications for using force to defend people or property. The State bears the burden to establish probable cause that defendant's use of

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force was not statutorily justified when a defendant invokes the statute. State v. Thomas ………………………………………………….…… 403*

Prosecutorial Error—Court Considers Context of Statement. In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation. State v. Becker ……………..…… 176

Reading Aloud of Miranda Rights Not Required. There is no requirement that Miranda rights be read aloud in order to obtain a legally sufficient waiver of the right to remain silent. State v. Parker …………….…..… 255*

Sentencing—Calculation of Criminal History Score—Elements of Prior Out-of-State Conviction. A prior out-of-state conviction must have identical or narrower elements than a Kansas person crime to be scored as a person crime. State v. Williams ……………………………………...... 88

— Direct Appeals—Change in Law Benefits Defendant. A defendant is entitled to the benefit of a change in the law while the defendant's direct appeal is pending. State v. Williams ………………...………………...... 88

— Disproportionality Challenge Based on Section of Kansas Constitu- tion Bill of Rights. The test for a disproportionality challenge based on § 9 of the Kansas Constitution Bill of Rights includes both legal and factual inquiries. An argument that a sentence violates § 9 because it is cruel or unusual cannot be raised for the first time on appeal. State v. Patterson …………………………………………………...... … 59

— Hard 25 Life Sentence Not Categorically Disproportionate to This Class of Offenders. A hard 25 life sentence is not categorically disproportionate when applied to young adults convicted of felony murder. State v. Patterson …………………………………………………...... … 59

— Inclusion of Prior Domestic Battery Convictions in Criminal History Scoring Not Restriction on Double Counting. A sentencing judge's use of the same two prior misdemeanor domestic batteries both to calculate a defendant's criminal history for his or her base sentence on a current primary grid crime and to elevate a current domestic battery to a felony does not violate K.S.A. 2015 Supp. 21-6810(d)(9)'s restriction on double counting. State v. Fowler ………………………………………………………… 136

— Motion to Correct Illegal Sentence. A motion to correct an illegal sentence cannot raise claims that a sentence violates a constitutional provision. State v. Peterson ………………………………….……….…….. 162

— No Lifetime Postrelease Supervision Imposed for Off-grid Indeter- minate Life Sentence. A sentencing court has no authority to impose lifetime postrelease supervision on an off-grid, indeterminate life sentence. State v. Newman ……………………………………………..………… 155

— Prior Out-of-State Conviction—Offenses Not Comparable in This Case. Mississippi's offense of unnatural intercourse as stated in Miss. Code

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Ann. § 97-29-59 (1972) is broader than Kansas' offense of aggravated criminal sodomy as stated in K.S.A. 2010 Supp. 21-3506. Thus, the offenses are not comparable. State v. Williams ………………………………..…...... 88

— Uncertain Provision in Plea Agreement. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. State v. Frazier ……………………………………………...… 378*

— Withdrawal of Plea—Appellate Review. When a defendant moves to withdraw a plea before sentencing and the district court denies the motion, the defendant must establish on appeal that the trial court abused its discretion in denying a presentence motion to withdraw plea. State v. Frazier …………………………………………………..…… 378*

— Withdrawal of Plea for Good Cause. A defendant may withdraw a plea for "good cause shown" prior to sentencing. K.S.A. 2019 Supp. 22- 3210(d)(1). In determining good cause, a district court should consider several factors, including whether the plea was fairly and understandingly made. State v. Frazier …………………………….………………..… 378*

Sentencing Court. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence. State v. Becker ……………………………………….……… 176

— Reason for Departure—Appellate Review. An appellate court applies an abuse of discretion standard of review to determining whether a sentencing court erred in concluding that a mitigating factor constituted a substantial and compelling reason to depart in a particular case. State v. Randle ……………………………………………………….. 468*

— Use of Mitigating Factors to Justify Departure Sentence. Mitigating factors that may justify departure in one case may not justify a departure in other cases. State v. Randle ……………………………………….….. 468*

State Establishes Probable Cause to Defeat Motion for Immunity. For purposes of K.S.A. 2019 Supp. 21-5231, the State establishes the probable cause necessary to defeat a pretrial motion for immunity if the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt despite the defendant's claim of justified use-of-force immunity. State v. Thomas ………………………………………………………. 403*

Statutory Immunity from Criminal Prosecution—Probable Cause Standard—Burden on State. Probable cause is the standard used to decide whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, which is the statute broadly encompassing justifications for using force to defend people or property. The State bears the burden to establish probable cause that defendant's use of force was not statutorily justified when a defendant invokes the statute. State v. Collins ……………………………………………………….. 418*

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Sudden Quarrel and Heat of Passion Not Separate Concepts under Vol- untary Manslaughter. The concepts of "sudden quarrel" and "heat of passion," as used in the statutory definition of voluntary manslaughter, are not separate concepts. State v. Uk ………………………………………... 393*

To Defeat Motion for Immunity— State Must Establish Probable De- fendant was Engaged in Forcible Felony or Initially Provoked Use of Force. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226(b) or (c). State v. Thomas ……………………………………………………..... 403*

Two Offenses from Same Conduct—No Double Jeopardy Violation if An Element Not Required by Other. Convictions for two offenses arising from the same conduct do not violate double jeopardy if each offense requires an element not required by the other. State v. Gonzalez …….… 281*

Use of Deadly Weapon in Commission of Person Felony—Judge's Find- ing Not Violation of Appendi. A district judge's finding that a defendant used a deadly weapon in the commission of a person felony does not violate the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). State v. Carter …………………………....……….. 206

Voluntariness of Miranda Rights Waiver—Factors. The voluntariness of a defendant's Miranda rights waiver can be implied under the circumstances. Certain factors may contribute to a finding of voluntariness, such as the defendant explicitly saying that he or she understood his or her rights and then proceeding to answer questions. State v. Parker ………….… 255*

Voluntary Statements Admissible at Trial in this Case. Under the totality of circumstances reflected in the record, the defendant in this case voluntarily confessed to detectives, and her incriminating statements were admissible at trial. State v. Sesmas ………………………………………….... 267*

Withdrawal of Plea—Appellate Jurisdiction to Review Denial of Mo- tion. A defendant who pleaded guilty or nolo contendere may still move to withdraw the plea, and the Court of Appeals has jurisdiction to review a district court's denial of that motion. State v. Smith ………………….… 109

EVIDENCE:

Audio Recordings Qualify as Writings. The seven-factor test for authen- ticating an audio recording outlined in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence, K.S.A. 60-401 et seq. State v. Jenkins………………………………………………………...... 39

Authentication Requirement for Audio Recordings. Under the rules of evidence, K.S.A. 60-401 et seq., the authentication requirement for a writing is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The burden of authentication is minimal or

311 KAN. SUBJECT INDEX XIX

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slight, and there is no precise formula for district judges to determine authenticity. Indirect or circumstantial evidence can suffice. A proponent need only proffer evidence upon which a reasonable juror could conclude that an audio recording is what the proponent represents it to be. Such evidence may include the content of the recordings. Discrepancies and other conflicting evidence go to the weight, not the admissibility, of the recordings. State v. Jenkins………………………………………………………...... 39

Excluded Evidence—Appellate Review. Failure to make a sufficient proffer of excluded evidence precludes appellate review because there is no basis for the appellate court to consider whether the trial court abused its discretion. State v. Gonzalez ………………………………………….… 281*

Jail Telephone Call Recordings Admitted into Evidence. On the record in this case, the district judge did not abuse his discretion in admitting jail telephone call recordings into evidence. State v. Jenkins…………..……. 39

Other Crimes Evidence under K.S.A. 2018 Supp. 60-455—Probative Value Outweighed Prejudicial Effect in This Case. Under the facts of this case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises on his face constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. Such evidence is so similar to the medical observations and conclusions at issue that it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. And the district court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect. State v. Lyman ………………………...... 1

Prior Crimes or Bad Acts Evidence—Related Exculpatory Evidence is Relevant. When a district court permits evidence of prior crimes or bad acts under K.S.A. 60-455, exculpatory evidence related to the same prior crime or bad act is relevant. State v. Broxton …………………………..…… 357*

GOVERNOR:

Executive Order Cannot Be Revoked by House Resolution. House Con- current Resolution 5025 does not authorize the Legislative Coordinating Council to revoke Executive Order 20-18. Its plain text requires, as a condition precedent to exercise any Legislative Coordinating Council power, action by the State Finance Council to permit extension of the time of the Governor's state of disaster emergency declaration. Kelly v. Legislative Coordinating Council …………………………... 339*

INSURANCE:

KAIRA—Recovery of Substitution Benefits—Determination Is Case- by-Case Analysis. To recover substitution benefits, an injured person must

XX SUBJECT INDEX 311 KAN.

PAGE

prove genuine economic loss or liability for the expenses incurred. Deter- mining whether the injured person establishes genuine economic loss or liability is a case-by-case analysis. Williams v. Geico General Ins. Co. …. 78

Kansas Automobile Injury Reparations Act—Recovery of PIP Bene- fits. Personal injury protection "substitution benefits" as defined by K.S.A. 40-3103(w) are allowances for appropriate and reasonable expenses incurred in obtaining other ordinary and necessary services in lieu of those that, but for the injury, an injured person would have performed for the benefit of such person or such person's family. They are subject to a maximum of $25 per day for not longer than 365 days after the date such expenses are incurred. Williams v. Geico General Ins. Co. ……………………...……. 78

JUDGES:

Allegation of Judicial Misconduct—Not Sufficient Evidence under Facts of This Case. The party alleging judicial misconduct bears the burden of establishing that it occurred and that it prejudiced the party's substantial rights. Under the circumstances of this case, a motion for change of judge for posttrial matters based on an allegation in a letter from one trial spectator that the judge appeared to be sleeping during the trial was not sufficient to meet this burden. State v. Lyman …………………………………………………….….……... 1

Judicial Misconduct Must Prejudice Substantial Rights. The defendant in this case has not demonstrated judicial misconduct that prejudiced his substantial rights. State v. Lemmie ………………………………….... 439*

Recusal of Trial Judge Requested under K.S.A. 20-311d(b)—Requirements of Written Affidavit. In requesting recusal of a trial judge under K.S.A. 20- 311d(b), the language of the statute and Kansas caselaw make plain that under the circumstances of this case an affidavit is required for the chief judge to review. An affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirma- tion. State v. Lyman ………………………………………..……...…………... 1

KANSAS CORPORATION COMMISSION:

Public Utilities—Under K.S.A. 66-117d, utilities cannot charge customers producing their own energy more than they charge other customers based on that distinction. In re Joint Application of Westar Energy & Kansas Gas and Electric Co. …………………………………………………………………...……… 320*

— Statutes Do Not Conflict. K.S.A. 66-117d and K.S.A. 66-1265(e) do not conflict. K.S.A. 66-117d addresses the raw price utilities may permissibly charge for the sale of energy to customers producing a portion of their own energy while K.S.A. 66-1265(e) addresses the rate structure utilities may use when selling energy to customers who began producing energy after 2014. In re Joint Application of Westar Energy & Kansas Gas and Electric Co. …………………………………………………………….………...….... 320*

311 KAN. SUBJECT INDEX XXI

PAGE

— When Different Rate Structure Valid Under Statute. K.S.A. 66-1265(e) allows utilities to use a different rate structure for certain customers producing a portion of their own energy. But for the different rate structure to be valid under Kan- sas law, the ultimate cost to the customer remains subject to the requirements of K.S.A. 66-117d. In re Joint Application of Westar Energy & Kansas Gas and Electric Co. ……………….………………………………………….…... 320*

LEGISLATURE:

Statute Authorizing Creation of Legislative Coordinating Council—Specific Statute for Revocation of Executive Orders During Emergency. K.S.A. 46- 1202 is a general statute creating the Legislative Coordinating Council and, in this instance, must give way to the more specific statute—K.S.A. 2019 Supp. 48- 925—which governs the revocation of gubernatorial executive orders issued during a declaration of state of disaster emergency. Kelly v. Legislative Coordinating Council ………………………………… 339*

MOTOR VEHICLES:

Kansas Automobile Injury Reparations Act—Statute Does Not Ex- clude Reimbursement for Substitution Benefits in This Case. K.S.A. 40- 3103(w) does not exclude reimbursement for substitution benefits when the injured person's spouse provides services subject to reimbursement. Williams v. Geico General Ins. Co. ………………………………..……. 78

"Moving Violations" Term in Statute Not Vague. The phrase "moving violations" in K.S.A. 2015 Supp. 8-1568(b)(1)(E), Kansas' fleeing and eluding statute, is not unconstitutionally vague. State v. Jenkins ……….…… 39

QUO WARRANTO:

Kansas House and Senate not Named Parties—Dismissal from Case. The Kansas House of Representatives and Kansas Senate are dismissed from this action brought by the Governor to determine the authority of the Legislative Coordinating Council to act under House Concurrent Resolution 5025. Kelly v. Legislative Coordinating Council ………………….…. 339*

STATUTES:

Interpretation—Appellate Review. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Coleman …………………………………………..………..... 332*

Operates Prospectively—Exception. Generally, a statute operates prospectively unless there is clear language indicating the Legislature intended it to operate retrospectively. State v. Coleman ……………………….. 332*

TRIAL:

Admission of Photographic Evidence—Appellate Review. An appellate court reviews the admission of photographic evidence by first determining whether the challenged photos were relevant. If they are relevant, and a

XXII SUBJECT INDEX 311 KAN.

PAGE

challenging party's objection is based on a claim that the photographs were overly repetitious, gruesome, or inflammatory, i.e., unduly prejudicial, the standard of review is abuse of discretion. The burden of showing an abuse of discretion rests with the party asserting the error. State v. Randle … 468*

Admission or Exclusion of Hearsay Statements—Appellate Review. An appellate court generally reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion. But when the adequacy of the legal basis for the trial court's evidentiary ruling is challenged, the appellate court reviews that ruling de novo. State v. Randle ………………..…. 468*

Cumulative Error Doctrine—Single Error Cannot Constitute Cumula- tive Error. In the absence of any trial error, none can accumulate; and the presence of one error is insufficient to accumulate. State v. Lyman …...... 1

Enforceability of Stipulation—Abuse of Discretion Standard. An abuse of discretion standard applies to the district court's ruling on enforceability of a stipulation. Under the circumstances of this case, the court did not abuse its discretion in declining to enforce a stipulation regarding waiver of hearsay and foundation objections to medical records used to form the basis of a proposed expert's opinion where the court held the defendant's proposed expert was excluded from testifying. State v. Lyman…………………..… 1

Evidence—Hearsay Admissible if Fits Statutory Exceptions. Hearsay is evidence of a statement made by someone other than a testifying witness at a hearing that is offered to prove the truth of the matter stated. Hearsay is not admissible unless it fits within one or more of the statutory exceptions in K.S.A. 2019 Supp. 60-460. State v. Randle …………………..…… 468*

Evidence Admitted Qualified as Hearsay. No error occurred in this case when the judge admitted evidence that a coconspirator made two statements after the defendant shot the victim. To the extent the statements qualified as hearsay, they were admissible under K.S.A. 60-460(i)(2), one of the grounds on which the judge relied. State v. Lemmie ……………….…. 439*

Evidence Admitted Under K.S.A. 60-455—No Abuse of Discretion. There was no abuse of discretion in this case arising from admission of K.S.A. 2019 Supp. 60-455 evidence of the defendant's upset over a missing methamphetamine pipe. State v. Lemmie ………………………..…… 439*

Evidence Sufficient for Conviction of First-Degree Murder in this Case. The State introduced more than enough evidence in this case to convict the defendant of first-degree murder. State v. Lemmie …………………... 439*

Expert Testimony—District Court's Obligation to Ensure Reliability— Daubert Standard. Under K.S.A. 2018 Supp. 60-456(b), a district court has a gatekeeping obligation to ensure the reliability and relevancy of proposed expert testimony. In performing its gatekeeping function, a district court may consider the nonexclusive factors set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d

311 KAN. SUBJECT INDEX XXIII

PAGE

469 (1993). The reliability inquiry must be tied to the particular facts and circumstances of the particular case. State v. Lyman……………….…..… 1

Failure to Give Voluntary Intoxication Instruction—No Error If No Direct Evidence of Defendant's Impairment. When no direct evidence of a defendant's impairment was presented to the jury in a premeditated first-degree homicide trial, a district court does not necessarily err in failing to give a voluntary intoxication instruction even when evidence of consumption of an intoxicant is presented. State v. Becker …………………………………………….…... 176

Judge's Refusal to Suppress Evidence Harmless in This Case. Any possible constitutional error arising from the district court judge's refusal to suppress evidence that a detective obtained phone passcodes from the defendant was harmless in this case. No incriminating evidence from the phones was introduced in the defendant's trial. State v. Lemmie …..…. 435*

Jury Instruction—Legally Correct in This Case. A trial judge's jury instruction that states, "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them," is legally correct. State v. Patterson……………………...... 59

— Voluntary Intoxication Instruction Not Necessary Unless Proof Ex- ists. A court need not give a voluntary intoxication instruction unless sufficient proof exists to establish intoxication to the extent of impairing the defendant's ability to form the requisite intent for the charged crime. State v. Craig ……………...……………………………………...….. 456*

Jury Instruction Error Claims—Multiple Steps—Appellate Review. An appellate court reviews instructional error claims in multiple steps. First, it decides whether the issue was properly preserved. Second, it considers whether the instruction was legally and factually appropriate. It exercises unlimited review of these questions. And when the reviewing court finds error, it considers whether that error is reversible. If the defendant properly requested the instruction in district court, the State must establish there is no reasonable probability the error's absence would have changed the verdict. The appellate court considers the entire record de novo when deciding whether the State met this burden. State v. Randle ……………..……. 468*

Jury Instruction for Voluntary Manslaughter Not Appropriate Without Ev- idence of Provocation. The mere existence of a "sudden quarrel" immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. State v. Uk …………………………………………………………….….. 393*

Jury Instruction Regarding Accomplice's Testimony. State v. Anthony, 242 Kan. 493, 749 P.2d 37 (1988), is still good law. A district court judge may instruct a jury to view an accomplice's testimony with caution even when that testimony is favorable to a criminal defendant. State v. Boeschling ………………..…….. 124

XXIV SUBJECT INDEX 311 KAN.

PAGE

Jury Instructions—Burglary Instruction Not Reversible in This Case. A district court judge errs by adding a culpable mental state of "knowingly" to a burglary instruction that otherwise includes the correct mens rea of "intent to commit a theft." But the error does not qualify as clear and thus reversible, as it adds to rather than subtracts from the State's burden to prove the defendant guilty beyond a reasonable doubt. State v. Boeschling …………………….…..….... 124

— Failure to Give Lesser Included Offense Instruction May Be Harmless. Even if a requested lesser included offense instruction would have been both factually and legally appropriate, a district court's failure to give such instruction may still be harmless if the court is convinced there was no reasonable probability that the failure affected the verdict. State v. Becker …………………………..…... 176

— Failure to Give Lesser Included Offense Instruction Was Harmless in This Case. Under the facts of the case, a district court's failure to give a requested lesser included offense instruction of second-degree homicide was harmless when no evidence was presented to enable the jury to conclude that the homicide was anything other than premeditated. State v. Becker …….……………………...... 176

— Jury Instructed on Uncharged Crime Only for Lesser Included Offense. It is not legally appropriate to instruct a jury on an uncharged crime unless it is a lesser included offense of a charged crime. State v. Broxton ………….……. 357*

— Presumption Jurors Follow Instructions. Kansas courts presume jury members follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. State v. Gray ……………………...…...…. 164

— Voluntary Intoxication Instruction Not Automatically Warranted if Evi- dence of Drinking. Evidence of consumption of an intoxicant near the time of the commission of a crime does not automatically warrant the giving of a voluntary intoxication instruction. State v. Becker ……………………………………. 176

Jury Instructions Considered as Whole—Appellate Review. When reviewing jury instructions, an appellate court considers all the instructions together as a whole and does not isolate any one instruction. State v. Craig …………….... 456*

Jury Selection—Batson Challenge—Appellate Review. A three-step process is used under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to consider racial discrimination claims over the exercise of peremptory challenges during jury selection. First, the party contesting the strike must make a prima facie showing the other party exercised a peremptory challenge based on race. Second, if the requisite showing is made, the burden shifts to the party exercising the strike to articulate a race-neutral explanation for striking the prospective juror in question. In this second step, the striking party is required only to put forth a facially valid reason for exercising the strike, which does not need to be persuasive or plausible. Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. The district court's ruling on a Batson challenge is reviewed for abuse of discretion. State v. Gonzalez ………………………………..…………………..……. 281*

311 KAN. SUBJECT INDEX XXV

PAGE

Motion for New Trial Based on Newly Discovered Evidence—Requirements. To establish the right to a new trial based on newly discovered evidence, a criminal defendant must show: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that it is of such materiality that it would be likely to produce a different result upon retrial. State v. Lyman…….. 1

Noncapital Case—Failure to Instruct on Lesser Included Offense—Not Vio- lation of Right to Jury Trial or Due Process. In a noncapital case, a district court's failure to instruct on a lesser included offense does not impair a defendant's constitutional right to a trial by jury or right to due process. State v. Becker ….. 176

Nullification Question from Jury—No Error in Judge's Statement in this Case. A district court judge does not err in answering a jury's question about whether nullification can be applied in a case by saying: "You took the oath as jurors at the start of the case to follow the law in the case that you were instructed by the case." This response did not misinform jurors or coerce them into convicting the defendant. State v. Boeschling ………………………………………..… 124

Prosecutorial Error—Not Error to Tell Jury to Follow the Law as Given in Instructions. It is not prosecutorial error to state to a prospective juror, "So we don't have that luxury as a juror when it comes to jury instructions. And what that means is at the end of the trial you will get a packet of jury instructions and that is the law in the case. You don't get to go back and debate that." State v. Patterson…………………………………………...…………….…. 59

When Jury Instruction for Voluntary Manslaughter Appropriate. When the evidence shows the existence of a "sudden quarrel" or "heat of passion," the trial court performs a limited gatekeeping function to determine whether the degree of such quarrel or passion, when viewed in a light most favorable to the defense, is objectively sufficient, such that an instruction for voluntary manslaughter is factually appropriate. State v. Uk ………………………………………………. 393*

VENUE:

Change of Venue. Generally, a defendant may obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or that the judge is unable to control courtroom proceedings so as to provide a fair trial. State v. Galloway ………………………………………………………..... 238*

238 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

No. 117,941

STATE OF KANSAS, Appellee, v. CRYSTAL DAWN GALLOWAY, Appellant.

___

SYLLABUS BY THE COURT

1. VENUE—Change of Venue. Generally, a defendant may obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or that the judge is unable to control courtroom proceedings so as to provide a fair trial.

2. CRIMINAL LAW—Involuntary Statement by Defendant. A statement is not involuntary simply because a defendant was tired or under the influence of drugs; the condition must have rendered the defendant confused, unable to understand, unable to remember what had occurred, or otherwise unable to knowingly and voluntarily waive the right to remain silent.

3. CONSTITUTIONAL LAW—Right to Public Trial for Criminal Defend- ant. Both the United States Constitution and Kansas statutory law guarantee a criminal defendant the right to a public trial. The concept of a public trial implies that doors of the courtroom be kept open and that the public, or such portion thereof as may be conveniently accommodated, be admitted, subject to the right of the court to exclude objectionable characters.

4. APPELLATE PROCEDURE—Preservation of Constutional Issue for Ap- peal. A constitutional issue generally requires a specific challenge at trial in order to preserve it for appeal.

5. SAME—Burden on Appellant to Designate Record. An appellant bears the burden of designating a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes the action of the trial court was proper.

Appeal from Cherokee District Court; JEFFRY L. JACK, judge. Opinion filed March 13, 2020. Affirmed in part, vacated in part, and remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Crystal Dawn Galloway appeals from her conviction of one count of premeditated first-degree murder, one count VOL. 311 SUPREME COURT OF KANSAS 239

State v. Galloway of arson, and one count of interference with law enforcement, in addition to the imposition of a controlling hard 50 life sentence.

FACTS

As of May 2015, the State of Kansas had assumed custody of five of Galloway's children. Although Galloway was not permitted to have unsupervised visits with her oldest daughter, A.B., and Galloway was to have no contact with Galloway's boyfriend, Da- kota Cunningham, she nevertheless maintained contact with both A.B. and Cunningham. Cunningham's employer, Robin Fought, learned about the improper contact and discussed his concerns with Galloway's caseworker on May 8 and May 12, 2015. Fought told the caseworker that he was worried Galloway was planning on kidnapping her children and removing them from the state. On May 15, 2015, a water worker in rural Cherokee County came across a burning pickup truck in a field. Emergency responders extinguished the fire and discovered a man lying face down on the ground near the back of the truck. The man—identified later as Fought—had blood under his body. Sitting on his back was a gas can with torn telephone book pages stuffed into the spout. His body was partially burned and he had suffered multiple stab wounds. Near the truck and Fought's body were a knife and a sledgehammer with blood stains on them. That evening, Galloway called a friend, Glenda Stevens, and told her that a lender was seeking to repossess her van. She asked Stevens to follow her and Cunningham to help her hide the van. They abandoned the van in Oklahoma, and Stevens gave Gallo- way and Cunningham a ride to a barn, where the two set up a camp site inside. Along the way, they told Stevens that Cunningham had stabbed Fought because Fought pulled a knife on him. After dropping the two off at the barn, Stevens called the police and told them about the conversation. She gave the police Gal- loway's cell phone, which Galloway had left in Stevens' car for recharging. The phone contained photographs and messages relating to the crime scene and indicated that Galloway anticipated killing someone. On May 17, the Cherokee District Court issued a warrant for Galloway's arrest for second-degree murder. Police officers found 240 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

Galloway and Cunningham camping in the barn and arrested them on the morning of May 17. They took them back to Cherokee County and interrogated them simultaneously but separately. Through a gradually changing narration of the events, Galloway denied having anything to do with committing a murder and told the investigators that Cunningham said he killed Fought in self- defense and that her participation was limited to providing the means for him to escape. Galloway later told a niece that Fought was killed because he turned in A.B. for visiting Galloway and because he was not paying Galloway for work she was doing for him. Police examined both Galloway's and daughter A.B.'s phones. At approximately 8:40 a.m. on May 15, Galloway had sent A.B. a text reading: "hey going to get me a snitch yay." A.B. replied: "be careful clean your tracks and phone." On both phones was a pho- tograph of a list of items: "different tags and car, food, water, clothes, blankets, coats, weapons, scanner for police, no phones, money, diapers and wipes, cigarettes, masks, gloves, boots, lock pick, learn schedules, learn entrances and exits to houses, tents, matches, flashlights, batteries, extra gas, maps, survival books." The list was created on Galloway's phone on May 12. Investigators also found pictures on Galloway's phone of the field where Fought's body was found and a nearby house. The picture of the house was taken about an hour before the fire was discovered. Another picture showed Fought's body with stab wounds but not yet in the position where it was found and not yet burned. On A.B.'s phone was a picture of a note from Galloway's niece addressed to "my favorite Aunt"; the note contained a poem that ended: "Don't forget to murder rob ☺ YEA." Police recovered DNA evidence showing that Galloway's blood was on the handle of the knife used to kill Fought. Her blood also was on the gas can and on the partially burned paper in the gas can. The State charged Galloway with one count of premeditated first-degree murder, one count of aggravated arson, and one count of felony interference with law enforcement. Before trial, Gallo- way moved for a change of trial venue away from Cherokee County, arguing that extensive pretrial publicity and the relatively VOL. 311 SUPREME COURT OF KANSAS 241

State v. Galloway small pool of jurors would make it unlikely that she could receive a fair trial. The district court denied the motion. Galloway also moved to suppress statements she made during her interrogations, and the district court denied that motion as well. A jury found Galloway guilty on all three charges. She was sentenced to a hard 50 life term for the murder conviction and concurrent terms of 13 months for the arson and 9 months for the interference with law enforcement convictions. She took a timely appeal to this court.

ANALYSIS

Change of Venue

Galloway initially challenges the district court's decision denying her motion to change venue. She argues this was error and she is entitled to a new trial in a different venue. This court reviews the district court's decision on a motion to change venue pursuant to K.S.A. 22-2616(1) for an abuse of discretion. An abuse of discretion occurs "when the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision." State v. Longoria, 301 Kan. 489, 509, 343 P.3d 1128 (2015). Galloway moved to change venue based solely on statutory grounds, specifically referring to K.S.A. 22-2616. K.S.A. 22- 2616(1) directs a trial court to grant a defendant's motion to change venue if it "is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county." Media publicity alone is never sufficient to establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001). The burden is on the defendant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality. State v. Hig- genbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001). In determining whether these circumstances exist so as to create prejudice under the statutory scheme, the trial court is to consider the following nine factors:

242 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

"'(1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.'" Longoria, 301 Kan. at 510 (quoting State v. Carr, 300 Kan. 1, Syl. ¶ 10, 331 P.3d 544 [2014], rev'd and remanded on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 [2016]).

In the district court, Galloway alleged that extensive media coverage of the murder and widespread discussion of the topic in the community, combined with the "high esteem" enjoyed by the victim, tainted any jury pool in the county. She attached articles in the press and online accounts of the investigation and charges. The State filed a response, arguing that the publicity was not ex- cessive and Galloway had failed to demonstrate presumed prejudice. Denying the motion, the district court judge said:

"Well, I have looked through the motion and the supporting documents and I have read the State's response, and while there was some publicity here I don't believe that it was untoward. In fact in my experience this is less publicity than some other cases that I've seen. I certainly don't think it reaches any kind of prima facie showing of any kind of prejudice. And there isn't any showing of actual prejudice here. I think what I would prefer to do is to go ahead and deny the motion so that we can go ahead and go on with this without it hanging over. But if during voir dire or some other information comes up Mr. Myers [defense counsel] would have the opportunity to refile with that additional information."

The district court did not address the majority of the nine factors used to assess prejudice, but Galloway did not specifically argue those factors and did not request findings on them. Although Galloway argues on appeal that the district court failed to apply the factors to the specifics of her motion, she did not make that argument in district court. For this reason, it is difficult or impossible to review the district court judge's findings for error. "Generally, litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the trial court VOL. 311 SUPREME COURT OF KANSAS 243

State v. Galloway the opportunity to correct such inadequacies, and, when there is no objection, omissions in findings are not considered on appeal." McIntyre v. State, 305 Kan. 616, 618, 385 P.3d 930 (2016). We, therefore, do not find error in the district court's omission of findings with regard to some of the nine caselaw factors set out in Carr. Galloway also insists that the district judge erred by interject- ing his own experience into the determination. The judge's statement, however, in light of the superficial evidence of prejudice that Galloway presented to him, is not incorrect and does not show a manifest abuse of discretion. Verge is instructive on this point, i.e. the difficult burden that a party must sustain in order to demonstrate the necessity of changing venue. There, the defendant compiled a study based on statistics of 110 prospective jurors, showing their familiarity with the crime and their potential inability to decide a death penalty case, as well as instances of racial prejudice. This court found no abuse of discretion because the district court was able to adequately screen jurors at voir dire for prejudice. 272 Kan. at 508. Similarly, in Higgenbotham, 271 Kan. 582, the defendant complained of inflammatory publicity and presented the court with a survey:

"The survey pool was made up of 302 residents in Harvey County. The survey concluded that 95.7% of the individuals surveyed recalled the case after being given a brief synopsis, 60.6% of the individuals believed the defendant was either probably or definitely guilty, and 53% of the residents with knowledge believed that there was at least some evidence that the defendant was guilty. The survey also found that Ellis County would be similar in make up to Harvey County but did not have the same problems with regard to publicity and knowledge of the case." 271 Kan. at 593.

The district court nevertheless denied the motion, and this court, finding no abuse of discretion, affirmed, holding:

"Reasonable persons could disagree with the trial court's determination in light of the extensive pretrial publicity and survey evidence. However, it cannot be said that no reasonable person would agree with the trial court's decision to deny the motion, especially given the lack of evidence showing any problems in selecting a jury." 271 Kan. at 595.

This court cited to other cases finding no abuse of discretion for not changing venue: State v. Jackson, 262 Kan. 119, 129-34, 244 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

936 P.2d 761 (1997) (finding no abuse of discretion even though 82% of the respondents recalled at least some specifics about the incident and more than 60% thought the defendant was probably or definitely guilty); State v. Swafford, 257 Kan. 1023, 1035-37, 897 P.2d 1027 (1995) (57.1% of those surveyed felt the evidence was strong against the defendant); State v. Anthony, 257 Kan. 1003, 1013-15, 898 P.2d 1109 (1995) (finding no abuse of discretion even though 97.5% of those surveyed had heard of the case and 63.8% of those surveyed felt the evidence was strong against the defendant). 271 Kan. at 594. In the present case, Galloway provided no evidence of prejudice beyond articles and a few Internet comments. In fact, the judge gave Galloway the opportunity to reassert the motion if additional evidence of community-wide prejudice came up during subsequent proceedings, and Galloway did not follow up on the motion. Our caselaw tells us this is simply not enough to warrant finding an abuse of discretion in denying a motion to change venue. Meeting the defendant's burden is a "steeply uphill battle." State v. Roeder, 300 Kan. 901, 909, 336 P.3d 831 (2014). "[G]en- erally a defendant can obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or that the courtroom proceedings more resemble a circus or a lynch mob." Longoria, 301 Kan. at 506. Galloway makes no such showing here. Galloway does not demonstrate reversible error in this issue.

Suppression of Interrogation

Two days after Fought's body was discovered, Galloway and Cunningham were arrested in Oklahoma and transported back to Kansas. Galloway was interviewed at length by Kansas Bureau of Investigation Senior Special Agent James Botts and another investigator, and, during the course of the interrogation, she made statements that were later used to impeach her trial testimony. She moved to suppress those statements, and the district court denied the motion. She argues on appeal that the district court erred because her statements were not voluntary. After reviewing her arguments and a video recording of the interrogation, we conclude that no error occurred. VOL. 311 SUPREME COURT OF KANSAS 245

State v. Galloway

This court uses a bifurcated standard of review when considering a district court's decision on a motion to suppress evidence. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). First, it reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. 304 Kan. at 274. In reviewing the factual findings, this court does not reweigh the evidence or assess the credibility of witnesses. 304 Kan. at 274. Second, this court reviews the ultimate legal conclusion de novo. 304 Kan. at 274. The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination is made applicable to the states through the Fourteenth Amendment Due Process Clause. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Malloy instructs that the government is "constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth." 378 U.S. at 8. The privilege guarantees "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." 378 U.S. at 8. When a defendant challenges his or her statement to a law enforcement officer as involuntary, the prosecution must prove the voluntariness of the statement by a preponderance of the evidence. In determining whether the statement was the product of an accused's free and independent will, a district court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering a nonexclusive list of factors. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). These factors are: "(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language." State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008). 246 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

In State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009), this court described the weight a court should give the six factors:

"'[T]hese factors are not to be weighed against one another . . . , with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act. [Citations omitted.]'"

A statement is not involuntary simply because a defendant was tired or under the influence of drugs; the condition must have made the defendant seem confused, unable to understand, unable to remember what had occurred, or otherwise unable to knowingly and voluntarily waive the right to remain silent. See, e.g., State v. Betancourt, 301 Kan. 282, 291, 342 P.3d 916 (2015). Galloway's interrogation lasted approximately two-and-a-half hours, during which time she was reasonably articulate and expressed a detailed memory of the events of the day of the murder. Her story changed several times, but she consistently denied participating in the murder except to the extent that she aided Cun- ningham in an attempted escape from the scene. Galloway testified in her own defense at the trial. Her trial version differed in significant ways from the stories that she told during the interrogation. The jury was allowed to view the recorded interrogation for purposes of impeaching her trial testimony. Galloway argues that the recording of her interrogation should have been suppressed because her mental state was so impaired that she was incapable of making voluntary statements. She argues that lack of sleep, low blood sugar, hunger, and pregnancy accompanied by gestational diabetes deprived her of the mental capacity to make voluntary statements. Our existing caselaw demonstrates the weakness of Gallo- way's arguments.

In State v. Holmes, 278 Kan. 603, 613, 102 P.3d 406 (2004), the defendant argued that various factors, including drug use and VOL. 311 SUPREME COURT OF KANSAS 247

State v. Galloway sleep deprivation, impaired his ability to give a knowing and voluntary confession. But this court pointed out the testimony of detectives who stated that the defendant appeared coherent, answered questions rationally, and recalled events leading up to the shooting. In addition, he cooperated with the detectives and showed no signs of being under the influence of intoxicants except for appearing tired. The court noted that without evidence the defendant asked to sleep or was not allowed to sleep, it could not conclude that sleep deprivation rendered his statement involuntary. 278 Kan. at 615. Similarly, in State v. Gonzalez, 282 Kan. 73, 102, 145 P.3d 18 (2006), a defendant asserted that he had not slept for two days and was "strung out on drugs," thus rendering his interrogation re- marks involuntary. This court noted that the defendant was responsive to questions and did not appear to have difficulty following the questioning. The defendant articulated a clear, detailed rec- ollection of the criminal incident. He continued to answer questions without protest or complaint, and he did not seek contact with others outside the interrogation room. Finding no unfairness in the questioning process or signs of mental disassociation, this court affirmed the district court's conclusion that the interrogation was voluntary. 282 Kan. at 103-06; see also State v. Young, 220 Kan. 541, 547-48, 552 P.2d 905 (1976) (defendant did not appear out of touch with reality, speech and mentality did not appear impaired, and he appeared to have command of his faculties; drug use therefore did not preclude voluntariness); State v. Bell, 276 Kan. 785, 797, 80 P.3d 367 (2003) (defendant's speech was "clear and coherent" and he "actively engaged in conversation with the officers"; marijuana use before interview did not undermine voluntary nature of statements). In the present case, substantial competent evidence supports the district court's finding that Galloway's statements were voluntary and were made without coercion. The interrogating officers specifically asked about drug use and whether Galloway understood their questions and understood what was going on. She did not inform the interrogating officers that she was impaired or unable to understand her circumstances. Although she appeared tired and slow of speech, her statements were clear and she attempted 248 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway to describe in considerable detail her role in the killing. Her story changed as the interrogators pointed out inconsistencies or discrepancies with the physical evidence, but her narrative consistently evolved throughout the interview. For example, she initially said that she walked away from her vehicle after it became stuck, but, when it was pointed out to her that a friend reported giving her a ride, she explained that she lied about that so as to avoid dragging the friend into the matter. She then acknowledged the friend's help during the remainder of the interrogation. At no time during the interview did Galloway appear disori- ented, incoherent, confused, or disassociated from reality. Instead, she provided detailed accounts of the sequence of events, how she injured her finger, why her story was evolving, and the nature of her relationships, such as with her children, her friend who gave her a ride, Cunningham, and the victim. Although it appears evi- dent that she was often not truthful in her statements, the deceit appears to have served the purpose of minimizing her involvement in the killing and does not appear to have been the consequence of confusion or delusion. We note that Galloway did not tell the interrogators that she was pregnant; she told them she might be pregnant. She did not tell the investigators she had gestational diabetes; she told them she did not have diabetes at the time but had experienced gestational diabetes during an earlier pregnancy. When she asked for "pop" during the interrogation because she was feeling light- headed from low blood sugar, the investigators provided her with a drink and a meal within 10 minutes. She informed the investigators that she did not have medication, alcohol, or drugs in her system, except possibly marijuana that she had smoked a few days earlier. At the motion to suppress hearing, Galloway testified that she actually was pregnant during the interrogation. She testified that she had no education beyond the eighth grade but that she was able to read and write, albeit with some difficulty. She testified that she was experiencing nausea and dizziness during the interrogation but acknowledged that she never told the investigators that she was feeling ill or was suffering from dizziness. VOL. 311 SUPREME COURT OF KANSAS 249

State v. Galloway

Although Galloway argues that she did not voluntarily make her recorded statements, she is challenged to articulate in what way the statements were involuntary. Her conduct during the interrogation demonstrated a grasp on reality and a lucid understanding of the proceedings. She did not request outside assistance, and she did not ask that the questioning stop. She answered all the questions, perhaps not honestly, but in such a way that she demonstrated that she understood the questions. Although the interrogation lasted for several hours, her most incriminating statements about having a cell phone came within the first 20 minutes. These statements tended to contradict her later trial testimony that she was not the person who made certain calls, sent certain texts, and took photographs of the crime scene. There is a statutory test that limits the admissibility of a defendant's out-of-court statements relevant to the charged offense and sets out several conditions that the judge must find satisfied before admitting those statements. K.S.A. 2019 Supp. 60-460(f) states:

"Confessions. [Hearsay evidence is inadmissible except] [i]n a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused: (1) When making the statement was conscious and was capable of understanding what the accused said and did; and (2) was not induced to make the statement: (A) Under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary; or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same."

These statutory factors do not help Galloway. She was conscious and understood what had transpired. No threats were lev- eled against her. To be sure, the investigators several times told her she was lying and that things might go better for her later on if she told the truth, but they did not overtly coerce her. For example, they did not tell her that she could only have something to eat or drink if she changed her story to suit them, and they did not tell her that they would prolong the interrogation if she was not more forthcoming with the truth. She, in turn, did not ask to terminate 250 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway the interrogation and did not tell them that she was feeling sick or was in some way unable to answer their questions truthfully. Galloway does not make a sufficient showing that her statements were involuntary to warrant reversing the district court's denial of her motion to suppress.

Jury Question

After the jury began deliberating, it sent a question to the court relating to viewing the evidence. On the record and in the presence of counsel for both parties and Galloway, the court discussed the question and then sent an answer. Galloway maintains that the discussion did not take place in "open court" and the allegedly closed proceeding resulted in reversible error. A defendant's right to be present at every critical stage of his or her trial raises an issue of law over which this court exercises unlimited review. State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014). Similarly, review of violations of the right to an open trial is unlimited. See State v. Dixon, 279 Kan. 563, 596, 112 P.3d 883 (2005), overruled on other grounds by State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). Both the United States Constitution and Kansas statutory law guarantee a criminal defendant the right to a public trial. See U.S. Const., amend. 6; State v. Reed, 302 Kan. 227, 237, 352 P.3d 530 (2015); State v. Kirby, 272 Kan. 1170, 1196, 39 P.3d 1 (2002); K.S.A. 2019 Supp. 22-3420(d). The concept of a public trial implies that doors of the courtroom be kept open and that the public, or such portion thereof as may be conveniently accommodated, be admitted, subject to the right of the court to exclude objectionable characters. State v. McNaught, 238 Kan. 567, 577, 713 P.2d 457 (1986) (citing 75 Am. Jur. 2d, Trial § 33, p. 146). In the course of deliberating, the jury sent a handwritten question to the court: "Can we see the text messages?" The district court judge discussed the matter with both attorneys, and all three agreed that the texts were contained in an exhibit notebook that the jurors took with them into deliberations. The court then sent the jury a short handwritten answer: "Regarding the text messages, we believe they are in the red binder." No further questions came from the jury. VOL. 311 SUPREME COURT OF KANSAS 251

State v. Galloway

Galloway asserts that the discussion of the jury question took place in a closed courtroom setting. She further contends that such a setting violates her right to a public trial. Although Galloway claims that the jury question was not considered in open court, the record is not at all clear on that point. After the jury retired to deliberate, the judge and counsel discussed arrange- ments for the alternate jurors. Part of that discussion was held at the bench. Afterwards, the court reporter noted:

"THE DISCUSSION AT THE BENCH CONCLUDES. DURING DELIBERATIONS THE JURY HAS A QUESTION AND THE ATTORNEYS, DEFENDANT AND JUDGE HAVE THE FOLLOWING DISCUSSION."

The court and parties then discussed the jury's question. The court reporter made no notation indicating that the discussion took place in closed court; to the contrary, it appears more likely that it occurred in open court. If that conclusion is erroneous and the discussion was indeed in closed court, a contemporaneous objection would have made that clear. As it is, this court is left to speculate just what the circumstances of the discussion were. Constitutional issues generally require a specific challenge at trial in order to preserve the issue for appeal. See, e.g., State v. Wil- liams, 298 Kan. 1075, 1083, 319 P.3d 528 (2014); State v. Key, 298 Kan. 315, 323, 312 P.3d 355 (2013). The requirement of a contemporaneous objection allows issues to be fully explored during the district court proceedings so that any error or potential error can be avoided. See, e.g., State v. Raskie, 293 Kan. 906, 914-15, 269 P.3d 1268 (2012). A timely trial objection helps ensure that a record is created that suffices for appellate review. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Nothing in the record informs this court that the discussion of the jury question was not conducted in open court. Galloway did not make a record of the asserted error, and we cannot determine that the error actually occurred. An appellant bears the burden of designating a record that affirmatively shows prejudicial error. Without such a record, we presume the action of the trial court was proper. State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007). We will not find error or reverse based only on an appellant's unsubstantiated speculation that error took place.

252 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

Jury's Duty Instruction

Galloway next contends that the district court impermissibly interfered with the jury's power to nullify a law when it instructed the jury that it should find her guilty if the facts supported such a finding. The district court gave the following instruction regarding the jury's duty:

"The test you must use in determining whether the defendant is guilty or not is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty."

This court has recently addressed arguments of the type that Galloway raises here. In State v. Patterson, 311 Kan. 59, 67-68, 455 P.3d 792 (2020), we held that an instruction identical to the one in the present case was not erroneous. See also State v. Boothby, 310 Kan. 619, 630-32, 448 P.3d 416 (2019); State v. Pruitt, 310 Kan. 952, 453 P.3d 313, 326-27 (2019). As in Patterson and Boothby, the instruction here was legally correct and simply stated the jury's duty to follow the law. Gallo- way has not demonstrated error, let alone reversible error, in arguing this issue.

Mitigating Sentencing Factors

Galloway moved for a downward departure from a hard 50 sentence, arguing, in part, that she had no criminal history. The district court announced that it would not consider the absence of a criminal history as a mitigating factor because the Legislature had rejected that as grounds for mitigation. The State concedes this statement was contrary to the statutory sentencing scheme, and the question for this court to decide is whether the error was harmless. This court reviews a district court's decision not to depart from a presumptive sentence for abuse of discretion. A district court abuses its discretion when no reasonable person would take the view adopted by the judge; a ruling is based on an error of law; or substantial competent evidence does not support a factual finding VOL. 311 SUPREME COURT OF KANSAS 253

State v. Galloway on which the exercise of discretion is based. State v. McLinn, 307 Kan. 307, 347-48, 409 P.3d 1 (2018). K.S.A. 2019 Supp. 21-6625(a) sets out a nonexclusive list of mitigating circumstances that a district court may take into account when considering a reduced sentence. The first of these is that "[t]he defendant has no significant history of prior criminal activity." Even though lack of a criminal history is the first statutorily enumerated mitigating factor, for some reason the district court judge here stated that the Legislature did not intend for that to be considered a mitigating factor. The judge stated:

"Regarding the no prior felony convictions; the legislature made pretty clear that this is an off grid felony. They did not intend for prior criminal history to be involved in sentencing for premediated first degree murder. I think they have spoken on that issue. So that to me is not a compelling factor."

The State acknowledges that this statement was made as a matter of law and incorrectly stated the law. The State argues, however, that the judge's other comments make it clear that he would have denied the motion even if he had followed the law. The judge pointed out reasons he considered compelling for denying the motion: the overwhelming evidence of guilt, the extensive planning and preparation for the crime, luring the victim to the site of the murder, and involving other people, including her children, in the scheme. The subject of harmless error in not considering mitigating factors has come up in the context of Alleyne violations when a judge considered mitigating factors instead of a jury. Alleyne v. United States, 570 U.S. 99, 111-16, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), requires that juries, not judges, make determinations of aggravating factors. This court has stated it would only be in "rare instances when a hard 50 Alleyne error can be declared harmless." State v. Hilt, 299 Kan. 176, 205, 322 P.3d 367 (2014). This court has explained that even if overwhelming and uncontro- verted evidence established the existence of an aggravating factor, it could not conclude beyond a reasonable doubt "that no rational jury would have determined that the mitigating circumstance outweighed the aggravating circumstance." State v. Soto, 299 Kan. 102, 127, 322 P.3d 334 (2014). 254 SUPREME COURT OF KANSAS VOL. 311

State v. Galloway

Here, it is not a matter of whether a jury would reach the same conclusion as the judge but whether the judge would reach the same conclusion if he had applied the proper mitigating factors. The sentencing judge was sharply critical of the defendant and was unlikely to consider her absence of prior convictions a factor that outweighed the heinous nature of her crime. But he should have considered that factor, and he openly refused to do so. We cannot conclude, as a matter of law, that no rational judge would determine that a clean criminal history would not mitigate the various considerations weighing against a downward departure. We, therefore, vacate the sentence and remand the case to the district court for resentencing.

CONCLUSION

We find no errors in the conduct of the trial, either in terms of procedure or admission of evidence, and we affirm the conviction. We vacate the sentence and remand to the district court with directions.

1 HENRY W. GREEN JR., J., assigned. STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 117,941 vice Justice Johnson under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 117,941 vice Chief Justice Nuss under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 255

State v. Parker

No. 118,349

STATE OF KANSAS, Appellee, v. WILLIE E. PARKER, Appellant. ___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Custodial Interrogation Statements Excluded Unless Miranda Warnings Given. Statements made during a custodial interrogation must be excluded under the Fifth Amendment to the United States Consti- tution unless the State demonstrates it used procedural safeguards, i.e., Mi- randa warnings, to secure the defendant's privilege against self-incrimination.

2. SAME—Voluntariness of Miranda Rights Waiver—Factors. The voluntariness of a defendant's Miranda rights waiver can be implied under the circumstances. Certain factors may contribute to a finding of voluntariness, such as the defendant explicitly saying that he or she understood his or her rights and then proceeding to answer questions.

3. SAME—Reading Aloud of Miranda Rights Not Required. There is no requirement that Miranda rights be read aloud in order to obtain a legally sufficient waiver of the right to remain silent.

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed March 13, 2020. Affirmed.

Meryl Carver-Allmond, of Kansas Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Da- vid Greenwald, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Willie Parker takes this direct appeal to the Kansas Supreme Court from his conviction of one count of premeditated first-degree murder. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Willie Parker was employed as a driver for First Class Medi- cal Transportation, a delivery company that takes patients to and from the Kansas City Transitional Care Center, which is across the street from the University of Kansas Medical Center. Michel Ziade was his employer. On July 28, 2015, Parker and a coworker delivered a patient around noon and then returned to a parking 256 SUPREME COURT OF KANSAS VOL. 311

State v. Parker garage where their van was located. Parker and Ziade got into a verbal altercation in which Parker complained about his working hours and having to work night shifts. Ziade accused Parker of being late picking up a passenger, and the two exchanged insults and profanity. At one point, Parker said, "You can't fucking tell me what to do." The argument devolved into a fist fight. Witnesses reported that Ziade was bent over while Parker repeatedly hit him in the face. The witnesses did not see Ziade hit or strike Parker. Another employee, Stanley Burleson, pulled them apart and stood between them, and Ziade asked the bystanders to call the police. Parker then went to his van, opened the door, and stood for a short time retrieving something. After about 60 seconds, Ziade went into the parking garage and walked over to his car. He was about to get in when Parker came after him, wielding a pistol. Zi- ade turned and walked quickly or ran from the parking garage. Parker pursued Ziade at a fast walking pace, brandishing a gun, and shot at Ziade several times. After the first shot, Ziade ran out of the underground parking garage. Parker followed him and fired four more shots. Ziade fell to the sidewalk and rolled over on his back. Parker walked up to him and shot him one more time before turning and walking back into the parking garage. He went to his van, grabbed a bag, and then walked away down an alley. Although he was taken to the hospital almost immediately, Ziade died within minutes of the shooting. He died from a bullet that had been fired into his back and penetrated his heart. On July 31, 2015, based on the statements of eyewitnesses and a search of Parker's home, the State filed an Information charging Parker with premeditated first-degree murder. On August 6, 2015, investigators located Parker in a church building where he barri- caded himself for some six hours before tear gas forced him to surrender into custody. Within about an hour, detectives began a lengthy interrogation, in which Parker admitted killing Ziade. Parker was sent to Larned State Hospital for a competency evaluation, which disclosed that, despite signs of possible mental illness, he was competent to communicate with counsel and to be tried. Parker nevertheless was uncooperative, refusing to speak with at least one of his appointed counsel. VOL. 311 SUPREME COURT OF KANSAS 257

State v. Parker

The case went to trial in June 2017, and Parker presented no witnesses in his defense. The court instructed the jury on premeditated first-degree murder and on the lesser included offense of second-degree murder. The jury found Parker guilty of first-degree murder. He took a timely appeal to this court.

ANALYSIS

Motion to Suppress

Parker made several self-incriminating statements during the interrogation that took place immediately after his arrest. Before his trial, Parker moved to suppress these statements. The district court denied that motion. Parker argues on appeal that the district court should have suppressed his statements because the investigators did not take sufficient steps to ensure that he understood his Miranda rights. We conclude that, despite the unusual manner in which Parker received an explanation of his rights—necessitated by his refusal to allow the detectives to explain the rights out loud—no reversible error occurred. A dual standard is used when reviewing a decision ruling on a motion to suppress a confession. We review the factual underpinnings of a district court's ruling under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. We will not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015). The voluntariness of a waiver of a defendant's Miranda rights is a question of law that an appellate court determines de novo based on the totality of the circumstances. State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006). Statements made during a custodial interrogation must be excluded under the Fifth Amendment to the United States Constitu- tion unless the State demonstrates it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination. These safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation. State v. Regelman, 309 Kan. 52, 59, 430 P.3d 946 (2018). On appeal, the appellate court assesses whether a Miranda waiver was knowing, 258 SUPREME COURT OF KANSAS VOL. 311

State v. Parker voluntary, and intelligent under a totality of the circumstances test. State v. Mattox, 305 Kan. 1015, 1042, 390 P.3d 514 (2017). The voluntariness of a defendant's Miranda rights waiver can be implied under the circumstances. Kirtdoll, 281 Kan. 1138, Syl. ¶ 1. Certain factors may contribute to a finding of voluntariness, such as the defendant explicitly saying that he or she understood his or her rights and then proceeding to answer questions. 281 Kan. at 1146-47; see also State v. Wilson, 215 Kan. 28, 30, 523 P.2d 337 (1974) (when defendant says he or she understands his or her rights and makes no showing that statements were coerced or in some other way involuntary, Miranda safeguards are satisfied). There is no requirement that Miranda rights be read aloud in order to obtain a legally sufficient waiver of the right to remain silent. See, e.g., United States v. Collins, 40 F.3d 95, 98 (5th Cir. 1994), cert. denied 514 U.S. 1121 (1995); United States v. Bailey, 468 F.2d 652 (5th Cir. 1972); United States v. Alexander, 441 F.2d 403, 404 (3d Cir. 1971); United States v. Van Dusen, 431 F.2d 1278 (1st Cir. 1970); State v. Olquin, 216 Ariz. 250, 252-53, 165 P.3d 228 (Ct. App. 2007), rev. denied (2008); Wise v. Common- wealth, 422 S.W.3d 262, 271 n.4 (Ky. 2013); State v. A.M., 237 N.J. 384, 400, 205 A.3d 213 (2019); People v. Warren, 2 A.D.3d 1317, 1318, 770 N.Y.S.2d 266 (2003), leave to appeal denied 1 N.Y.3d 636 (2004); State v. Strobel, 164 N.C. App. 310, 313-14, 596 S.E.2d 249 (2004), cert. denied 545 U.S. 1140 (2005). There is also no requirement that interrogators follow a specific protocol for determining whether questioned individuals understand their rights. To be sure, interrogators may not wait until questioning is underway to administer Miranda warnings and then rely on statements made before they gave the warnings. See, e.g., Missouri v. Seibert, 542 U.S. 600, 617, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004) (when investigators intentionally employ two- step interrogation strategy, postwarning statements related to substance of prewarning statements must be excluded unless curative measures taken before postwarning statement is made). Here, however, the detectives provided Parker with a written statement of his rights along with an offer to read them out loud, VOL. 311 SUPREME COURT OF KANSAS 259

State v. Parker and he read the statement of rights, all before the substantive interrogation began. Although the better practice is that interrogators read the Miranda summary of rights out loud and make follow-up inquiries about whether the person being questioned understands those rights, that protocol was not possible in this case, because Parker insisted that an oral explanation of the rights was condescending behavior that he would not tolerate. In this unusual situation, we must look to the circumstances and the words used by both the detectives and Parker in order to determine whether he understandingly waived his rights against self-incrimination. State v. Davis, 306 Kan. 400, 417, 394 P.3d 817 (2017), sets out a nonexclusive list of factors to be examined in evaluating whether a confession was voluntary. The factors are:

"'(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. [Citations omitted.]'"

Before denying Parker's motion to suppress, the district court went through these factors in order, resolving them in favor of the State:

"The court resolves factor number one, the issue of competency, in favor of the State. Parker seems to be competent. He did not appear to be suffering from any type of delusions about why he was there. As previously indicated he did not seem to be under lingering effects of any chemical agents, he seemed to understand the reason for the interview and there was no violation as far as number one is concerned. As to factor number two the court is directed to consider the duration and manner of the interrogation. The interrogation lasted one hour 49 minutes and 45 seconds. At no time were the detectives in any way threatening Parker. Only Parker and the two detectives were present. The detectives were not armed. Parker was not restrained in any way. There were no handcuffs or leg shackles. Parker was of course confined in the interview room with the detectives but the court finds nothing amiss with the confinement. As to factor number three, the ability of the accused to request to communicate with the outside world, Parker made no request to communicate with the outside world. The detectives made it clear during the statement that he had a right to consult with an attorney if he chose to do so. He did not make that request. As to factor number four, the accused's age intellect and background, detective Sutton testified that Parker was 40 years of age, that he appeared to be well educated and fluent. Parker's background was not really discussed but it did not appear from a review of the video that anything about his age, his intellect or his background would have affected 260 SUPREME COURT OF KANSAS VOL. 311

State v. Parker his ability to give a voluntary statement. The fifth factor is the fairness of the officers in conducting the interrogation. The interrogation was a very conversa- tional event. No threats were made, no shouting and no aggressive movements by either of the detectives. They remained seated and calm throughout the interview. The court finds nothing that would have affected fairness of the investigation based upon the interrogation or based upon the officers' behavior. The defendant seemed to speak and understand English without any problem. The court must make its determination of admissibility of defendant's statement based on the totality of the circumstances. The prosecution has born its burden of proving Parker's confession is admissible by a preponderance of the evidence, See State v. Gilliland, 294 Kansas 519, 528-529, 276 P.3d 165 (2012), and viewing the totality of the circumstances surrounding the statement believes it was freely and voluntarily given."

Parker insists that the officers did not do enough to ensure he understood his rights. He points to several areas of concern—his troubled mental state, the recent standoff with police and exposure to tear gas, and an asserted inability to communicate with anyone outside the interrogation. Parker centers his argument for reversal on the asserted failure of the investigators to make sure that he understood his rights:

"Because the police in this case did nothing to ensure that Mr. Parker—a defendant who they had been informed was mentally ill and who had freshly been sprayed with tear gas at the end of a long standoff—understood the Miranda warnings on the sheet of paper handed to him, his purported waiver of his rights was invalid."

Our review leads us to the conclusion that substantial competent evidence supported the district court's factual findings and that those findings showed a voluntary waiver of Miranda rights. The topic of Parker's rights came up a couple of times during the interrogation. After a few preliminary discussions of what he wanted to drink, Detective Sutton said: "We'll be able to sit down and have a good conversation, but I do have to read you your Mi- randa Rights, okay?" The following dialogue then took place:

"[Parker:] I will not be signing any— "[Detective Jason Sutton:] Okay. "[Parker:] —documents. "[Sutton:] That's okay. "[Parker:] . . . From here on out. "[Sutton:] That's, that's understandable. I, I hear ya. "[Parker:] Uh . . . if you wish me to read it, I will, you don't have to read it to me. VOL. 311 SUPREME COURT OF KANSAS 261

State v. Parker

"[Sutton:] That's the laws that it says I have to read it. "[Parker:] Uh-uh, I didn't need it, but I will read it. "[Sutton:] Yeah, if you wanna read it and y— and you understand that, and then that's great, too. "[Parker:] Well, it— "[Detective Anthony Sanchez:] Do you wanna read it out loud then? "[Parker:] No, I don't, I don't need no one to, to read it for me, I don't need to read it out loud. "[Sutton:] Okay. You wanna read it? "[Parker:] Ye—yeah. "[Sutton:] Yeah, we, uh, we started workin' on that case, and, and it became obvious to us that there was two sides to this, because the video wasn't telling everything, and that's one thing, you know, like, we'd talk to ya, Mr. Parker, is we'd like to hear more about what you've been talkin' about in your own words, in your own way. You know, if you're in a position where you wanna do that with us, then we appreciate that. If you're in a position where you don't want an, an attorney with you, then we agree to that with you and we understand that, and we can sit here and, and discuss whatever you wanna discuss about how that day went, the parts you wanna talk about and the parts you don't wanna talk about, and like you said, it, there was a certain level of an agreement between you and Mr. Ziade, and, and, obviously, he broke that, that, uh, level of, of trust and, and agreement between you two, somethin' a man shouldn't do, m'kay? So if all that's okay with you, then, uh, we would like to hear more about, um, your thoughts on this."

Parker looked at the statement of Miranda rights for 62 seconds and then put the form down. He refused to initial or sign the statement. He then proceeded to answer (or refuse to answer) questions about the shooting. Much later in the interrogation, the subject of Miranda rights came up again.

"[Sanchez:] Okay. Okay, when we said that we're gonna say the rights to you, you got upset. I mean, is there a reason why you didn't want us readin' the rights to you? Uh, we understand you can read, you're an educated man, we know that, especially with the, you know, readin' the dictionary, thesaurus, all that. "[Parker:] Who told you I read the dictionary? "[Sanchez:] I'm sayin' we, we interviewed several people. "[Sutton:] I seen two dictionaries in your house. . . . . "[Sanchez:] [T]hat's the reason why we wanted to know about the Miranda, because we understand you can read and you understand that you know that, but you got upset because you didn't want him readin' 'em or me readin' 'em to you. "[Parker:] What, one, I said I wasn't goin' sign anything. "[Sanchez:] No, we un—we respect that. "[Parker:] Two, yes, it did make me upset, because I don't need no one treatin' me like a child, and that's exactly what they did. "[Sanchez:] Who did? 262 SUPREME COURT OF KANSAS VOL. 311

State v. Parker

"[Sutton:] First Class? [Parker's employer.] "[Sanchez:] Yeah, but we, we understand you're not a child, you're a man. "[Parker:] Doesn't matter what they, uh, you understand. "[Sanchez:] You know, the whole thing is we're just tryin' to see who you are. So, like I said, you refused to sign it, but you understood your rights? "[Parker:] I understand everything I read."

First, we note that the refusal to sign a rights waiver form is not tantamount to a desire not to be questioned. Subsequent voluntary responses to inquiries after an initial Miranda warning can create an effective waiver. State v. Boyle, 207 Kan. 833, 841, 486 P.2d 849 (1971). Second, we acknowledge that there were signs of mental illness but conclude that substantial competent evidence supports the district court's findings with regard to Parker's competence, Parker's ability to contact the outside world, and the fairness of the officers in conducting the investigation. We further conclude that the findings show Parker's waiver was voluntary. Going into the interrogation, Detective Sutton spoke with people who knew Parker. They told him that Parker was eccentric: he would read the dictionary, he drank large quantities of vinegar, and he had said he thought he was God. These topics came up obliquely during the interrogation, with Parker responding with some annoyance that he wished people would not talk about him outside his presence. Ultimately, however, Parker has not directed us to anything that shows his mental condition rendered him unable to voluntarily waive his rights or the officers' conduct unfair. In fact, Parker does not argue that he actually did not understand his rights. He only asserts that the police should have done more to ensure that he understood. This is a subtle yet important distinction. Parker points to nothing in the record that suggests that he did not understand his rights or the interrogation process. In fact, toward the end of the interrogation, Parker stated that he understood what he read. Although he was not always responsive and he was often ar- gumentative, Parker displayed a clear understanding of what was going on and the roles of the detectives. For example, he sometimes responded to questions by turning them back around and VOL. 311 SUPREME COURT OF KANSAS 263

State v. Parker challenging the detectives in a somewhat humorous fashion to figure out what had happened. When they asked how he had man- aged to leave the crime scene so quickly, he laughed and said, "That's somethin' you goin' have to find out." Later on, after the interrogators speculated how he might have gotten away, he said, "Well, y'all the detectives." His statements indicated that he understood that he did not have to provide affirmative answers to questions from the police. When the detectives asked him why he finally surrendered to police and suggested he was hoping they would shoot him, he responded, "I don't know anything about all that. . . . You tryin' to get me to say somethin' that I don't have no ideal [sic] about." He also clearly understood the general nature of the charge against him: when an interrogator asked him if he knew what he was charged with, Parker responded, "Prolly chargin' me with first degree murder." The overall tenor of the interrogation showed a defendant who knew what crime he had committed and how he had done it; who understood that the police were trying to obtain incriminating statements from him; who was playing a cat-and-mouse game with the interrogators; and who understood his rights and how the interrogation process worked. Collins, 40 F.3d 95, presented a situation remarkably similar to what we address here. The Fifth Circuit wrote:

"It is axiomatic that an accused must be informed of his Miranda rights in a way that ensures his knowing, intelligent, and voluntary exercise or waiver thereof. The record supports the district court's finding that Collins was effectively informed of his rights. Collins perused the form for a minute before returning it to the agents with the words 'I ain't signing that.' One agent testified that Collins appeared to read and understand the form. We perceive no error in the district court's crediting of this testimony and determining that Collins was informed of and understood his rights considering his age—38, his education— GED degree, and his familiarity with the criminal justice system as a consequence of his extensive criminal history. "Whether Collins waived his Miranda rights presented a factual question for the district court. Such waivers may be direct or, in some instances, they may 'be clearly inferred from the actions and words of the person interrogated.' The mere answering of questions is insufficient to show waiver; however, there must be some affirmative action demonstrating a waiver of Collins' Miranda rights. We find such action to be present herein. 264 SUPREME COURT OF KANSAS VOL. 311

State v. Parker

"The record reflects that after Collins refused to sign the form one of the agents told him, 'You know, you can talk to us if you want. You don't have to. You read the form. But if you want to talk to us, you can.' At that point Collins replied 'Okay.' Thereafter, upon being questioned about the Dallas robberies he confessed. In this setting, the trial court did not err in finding that Collins waived his Miranda rights. The confession was properly admitted." 40 F.3d at 98-99.

Like the Fifth Circuit in Collins, we conclude that the district court here made no error when it admitted the interrogation statements.

Jury Instruction

Before trial, Parker requested a voluntary manslaughter committed upon a sudden quarrel or in the heat of passion instruction. The district court denied the request and instructed the jury on premeditated first-degree murder and intentional second-degree murder. Parker asserts that the voluntary manslaughter instruction was justified and that reversal is required. The analytic steps for reviewing the denial of a requested jury instruction are as follows:

"'(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011).'" State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).

Parker preserved this instruction issue, presenting the proposed voluntary manslaughter instruction to the district court and arguing that the testimony of some witnesses supported it. The instruction would have been legally appropriate because voluntary manslaughter is a lesser included offense of first-degree murder. See State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008). The question, then, is whether the instruction would have been factually appropriate. Voluntary manslaughter is "knowingly killing a human being committed: (1) Upon a sudden quarrel or in the heat of passion; or (2) upon an unreasonable but honest belief that VOL. 311 SUPREME COURT OF KANSAS 265

State v. Parker circumstances existed that justified use of deadly force . . . ." K.S.A. 2018 Supp. 21-5404(a). The core elements of voluntary manslaughter are an intentional killing and legally sufficient provocation. State v. Campbell, 308 Kan. 763, 775, 423 P.3d 539 (2018). Although the statute does not define "sudden quarrel" or "heat of passion," we have defined "heat of passion" as "'any intense or vehe- ment emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror', based 'on impulse without reflection.'" State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 (2014). The provocation must be "'sufficient to cause an ordinary man to lose control of his actions and his reason.'" 299 Kan. at 864. "Sudden" means "'[h]appening without warning; unforeseen[;] [c]haracterized by hastiness; abrupt; rash[;] [c]haracterized by rapidity; quick; swift.'" And "quarrel" means "'[a]n altercation or angry dispute; an exchange of recriminations, taunts, threats, or accusations between two persons.'" State v. Bernhardt, 304 Kan. 460, 476, 372 P.3d 1161 (2016). "Mere words or gestures, however offensive, do not constitute legally sufficient provocation." Hayes, 299 Kan. at 866. In the present case, the surveillance cameras showed and the eyewitnesses testified that, after Burleson got between Parker and Ziade, Parker took about a minute to walk back to his van, retrieve a handgun, and walk quickly in pursuit of Ziade, firing as he pursued him. In Campbell, this court held that the conduct was neither abrupt nor unforeseen when the defendant left a house, took the time to cock his gun, and returned to the house, whereupon he shot the victim. Under those facts, this court held that the conduct "re- veal[ed] a level of calculation" that belied heat of passion or loss of control. 308 Kan. at 776. We cited to Hayes, which in turn cited to State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012), holding that a defendant's "calculated conduct" undercut a claim that the action was taken "upon impulse without reflection," thus rendering a heat-of-passion instruction inappropriate. 308 Kan. at 776. Here, Parker took approximately 60 seconds to go from his van to the underground garage and shoot Ziade. There was no active confrontation at the time; Ziade was walking away from him. 266 SUPREME COURT OF KANSAS VOL. 311

State v. Parker

Parker urges this court to find sufficient evidence in the record to demonstrate a heated quarrel that would support a voluntary manslaughter instruction. There is indeed evidence of an argument in which both men used strong language in an accusing manner, and there is even some evidence (not supported by other witnesses or the surveillance recordings) that Ziade may have struck back against Parker. But the evidence is substantial and uncon- tested that, following the argument, Parker walked back to his van, spent some time retrieving a gun from a duffel bag, walked back to Ziade, and shot him in the back as he attempted to get away. In his interrogation, Parker did not say that he lost control of his ability to make decisions; he instead stated that he went for his gun because he had been unable to kill Ziade with his fists and he wanted to finish the undertaking. There is so little evidence of heat of passion at the time of the shooting and so much evidence of calculated decision-making that, in line with Campbell and Wade, the voluntary manslaughter instruction was not factually appropriate. We find no error in the district court's rejection of the requested instruction.

The district court is affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 118,349 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 267

State v. Sesmas

No. 119,862

STATE OF KANSAS, Appellee, v. YESENIA SESMAS, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Miranda Violation Questions Distinct from Voluntari- ness Questions. Legal analysis of Miranda violation questions about criminal defendant confessions to law enforcement is distinct from legal analysis of Fifth Amendment voluntariness questions.

2. SAME—Voluntary Statements Admissible at Trial in this Case. Under the totality of circumstances reflected in the record, the defendant in this case voluntarily confessed to detectives, and her incriminating statements were admissible at trial.

3. SAME—Post-Miranda Silence. The State is not permitted to impeach a defendant's version of events at trial with the defendant's post-Miranda silence. A fleeting violation of that rule in this case was harmless error, because the defendant's credibility was already thoroughly impeached by the State's evidence.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed March 13, 2020. Affirmed.

Meryl Carver-Allmond, of Kansas Capital Appellate Defender Office, argued the cause, and was on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This appeal arises out of Yesenia Sesmas' killing of her friend Laura Abarca and kidnapping of Abarca's newborn daughter. Sesmas appeals her jury convictions of first-degree murder, kidnapping, and aggravated interference with parental custody. She argues that her post-arrest confession was involuntary and that the State violated her due process rights at trial by mentioning her invocation of her rights. We hold that the confession was voluntary and that any violation of Sesmas' due process rights was harmless. We therefore affirm the judgment of the district court.

268 SUPREME COURT OF KANSAS VOL. 311

State v. Sesmas

FACTUAL AND PROCEDURAL BACKGROUND

Abarca gave birth to a daughter on November 11, 2016. The baby's father was Abarca's boyfriend, Manuel Gonzalez. The young family lived with Abarca's mother in an apartment in Wich- ita. On November 16, Sesmas, an old friend of Abarca's, drove to Wichita from Dallas, Texas, and visited Abarca and the baby at the apartment while Gonzalez was at work. Sesmas seemed surprised that Abarca's mother also was at the apartment. Sesmas had recently miscarried, but told only Abarca about the miscarriage. Sesmas faked a continued pregnancy to her friends and family. During her visit with Abarca, she said that she was interested in leasing an apartment in the same complex and asked if it had security. Sesmas also heard Abarca's mother say that she would have to go back to work the next day. The next day, both Abarca's mother and Gonzalez went to work in the morning, leaving Abarca home alone with the baby. Gonzalez texted Abarca throughout the day and noticed she stopped responding about 1 p.m. When Gonzalez returned home about 3:30 p.m., he noticed that the apartment's front door was open. He found Abarca dead on the couch; she had a gunshot wound to her forehead. There was no gun at the scene. The baby was missing. Police began an investigation of the shooting and apparent kidnapping. They learned of Sesmas' November 16 visit and a second visit planned for November 17 from Whatsapp messages on Abarca's phone. The messages also showed that Sesmas and Abarca chatted until about 1:30 the afternoon of November 17; after 1:30 Abarca stopped responding but Sesmas continued send- ing messages. Police accessed Sesmas' cell phone location information. Cell tower data showed Sesmas traveled from Dallas to Wichita before the murder, was near Abarca's apartment at the time of the murder, and returned to Dallas after the murder. Wichita police asked Dal- las police to apprehend Sesmas. Dallas police arrested Sesmas during the early morning hours of Saturday, November 19. She had a newborn baby girl with her, and DNA tests later proved that the baby was Abarca's daughter. VOL. 311 SUPREME COURT OF KANSAS 269

State v. Sesmas

Police also found a gun in a closet in Sesmas' home. Later tests established that the gun fired the bullet that killed Abarca. Police took Sesmas to a Dallas police station for questioning. Early in the interview, Sesmas told Wichita Police Department Detective Michelle Tennyson that she did not speak English. Ten- nyson enlisted the help of a Spanish-speaking Dallas detective, Jose Ortiz-Vives, to translate during the interview. Ortiz-Vives collected Sesmas' personal information. She said she had two sons: a 16-year-old who did not live with her and a 13-year-old who lived with her. Sesmas also said her 13-year-old niece was staying with her and her husband. Ortiz-Vives gave Miranda warnings to Sesmas, and Sesmas said that she understood her rights. Ortiz-Vives then asked:

"Ortiz-Vives: Ok. Are you willing to talk with us? "Sesmas: Just if a lawyer comes, how long do I have to wait? "Ortiz-Vives: Uh, that could take quite a while. Ok. The lawyer won't be found here. "Sesmas: Where do . . . in Wichita? "Ortiz-Vives: Huh? "Sesmas: Where at? "Ortiz-Vives: I think that it would be there then."

After Ortiz-Vives further explained the Miranda form, Sesmas completed the form, checking "no" in response to the last question asking if she wanted to speak with police, and initialing this response. Sesmas pushed the form to Ortiz-Vives who completed his portion. Immediately after Ortiz-Vives stopped writing on the form and pushed his chair back from the table, Sesmas began asking about her son and niece:

"Sesmas: I just wanted to ask, why did they bring my children, like how they brought them and they have them here? "Ortiz-Vives: Because they couldn't be left in the house alone. "Sesmas: But my children didn't have clothes or anything and they took them out like that and no "Ortiz-Vives: No, they have clothes now. "Sesmas: Now they have clothes? "Ortiz-Vives: Ah-huh "Sesmas: And my husband is here too? "Ortiz-Vives: Huh? "Sesmas: My husband. "Ortiz-Vives: Yes, he is, he is here, but he won't leave here anymore. 270 SUPREME COURT OF KANSAS VOL. 311

State v. Sesmas

"Sesmas: He won't leave . . . ? "Ortiz-Vives: Ah-huh. "Sesmas: And the children? "Ortiz-Vives: Huh? "Sesmas: The children? "Ortiz-Vives: The children already left here. They are going, being given to, so they won't stay alone at the house, they are being given to CPS. "Sesmas: Ok. "Ortiz-Vives: And so they there, well, will contact some family so that then they can get them from there, from CPS. "Sesmas: He doesn't have the number, I don't know, my son doesn't know his dad's number so they'll give them to him. If you can. "Ortiz-Vives: Which is it? What number does he have? "Sesmas: 316-[REDACTED]. "Ortiz-Vives: Whose number is that? "Sesmas: My son's dad. "Ortiz-Vives: What is his name? "Sesmas: [gives son's father's name] "Ortiz-Vives: [clarifies name] "Sesmas: [clarifies name] "Ortiz-Vives: Where does he live? "Sesmas: In Wichita, Kansas. "Ortiz-Vives: In Wichita, ok. "Sesmas: He has his other brother, has his son, my other son. "Ortiz-Vives: Ok. So, are you willing to talk to us or? "Sesmas: And what is it you want to know? "Ortiz-Vives: Well, I am here. She is doing the investigation from there. She is a detective from Kansas, from Wichita and she is doing a criminal investigation, and, um, for that is why she is here. She is the one that, eh, to know. "Sesmas: What does she want to know? That if I killed her? "Ortiz-Vives: Ah-huh. "Sesmas: Is that what? But I didn't kill her, I didn't kill her. I gave, I gave a boy, because she told me that she was going to give me the girl, because I was pregnant and I lost my girl and she already aborted three times and didn't want the girl. And I told her that, if she'd give her to me, she told me she was going to give her to me, and I had already made my plans and everything, and I just wanted that scare her is all, I just wanted to scare her that's all, but I didn't know she had been killed and they gave her to me, but I didn't know that this had been done to her, I just found out about this yesterday. "Ortiz-Vives: Who is it that killed her? "Sesmas: A guy that I paid in Planeview Park, to go take the girl from the mom. "Ortiz-Vives: That you paid? "Sesmas: Yes, but I don't know him or anything, I was just in Planeview and I saw him and I asked him if he didn't know someone that could do a job of just taking the girl away from someone and he told me that he, to give him $1000 dollars and that he would do it for me. VOL. 311 SUPREME COURT OF KANSAS 271

State v. Sesmas

"Ortiz-Vives: You paid $1000 dollars? "Sesmas: Ah-huh. But I just wanted him to take the girl away from her, I didn't want him to kill her or anything."

Ortiz-Vives relayed this exchange in Spanish to Tennyson in English. Ortiz-Vives then told Sesmas:

"[Tennyson] [s]ays that since you elected to, when you included in the document that you didn't want to talk to us, well, she can't ask, keep asking questions. "Sesmas: And so well, then I have to take it off? Or how? "Ortiz-Vives: If you wish. "Sesmas: I'll take it off."

Tennyson produced a second Miranda form, like the first, in Spanish. Ortiz-Vives began to explain the form again. Sesmas interrupted, asking what time her husband would leave the police station and asking Ortiz-Vives to let her write a note to her husband that the police could pass on to him. Ortiz-Vives said they needed to finish the Miranda form before he could address that. He finished explaining the Miranda form. This time Sesmas ini- tialed the blank marked "yes" in response to the final question asking if she wanted to speak with police. After completing the second Miranda form, Sesmas eventually confessed to killing Abarca. She said that she and Abarca had been friends for seven years and that both were pregnant that year. After Sesmas miscarried, she said, she asked Abarca if she would give Sesmas the child she was carrying. According to Sesmas, Abarca jokingly said yes. Sesmas did not tell anyone other than Abarca that she had miscarried because her husband was excited about the pregnancy. Sesmas recited several versions of the exact series of events. In the first version, Sesmas said that she went to Planeview Park and hired a man to take the baby for her. She said that she gave the man $1,000 and told him to bind and blindfold Abarca and bring the baby to her. She said the man went into Abarca's apartment and then brought her the baby, whom she took back to Texas. She claimed that she did not find out that Abarca was killed until she was already back in Texas. When police asked Sesmas about the gun they found in her home, she moved to her second version of events. Sesmas said she bought the gun three or four weeks prior so that she could use it 272 SUPREME COURT OF KANSAS VOL. 311

State v. Sesmas to threaten Abarca if she needed to. She said she gave the Planeview man the gun to use to kidnap the baby but that she told him not to "use" it. She said that he returned the gun to her when he gave her the baby. Finally, in her third version of events, Sesmas said that she was the one who confronted Abarca with the gun. She said that she told Abarca to give her the baby, that Abarca told her she was crazy, and that she "grabbed the pistol and pointed it at [Abarca] . . . and said [she] was going to shoot" but did not want to shoot. Then Abarca moved; Sesmas pushed her; and the gun fired, hitting Abarca in the forehead. Sesmas took the baby and left, returning home to Texas and passing the baby off as her own. After the interview with the detectives concluded, the State charged Sesmas with first-degree murder, kidnapping, and aggravated interference with parental custody. Before trial, Sesmas moved for a hearing under Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), to determine the voluntariness of her confession. The State argued that police did not interrogate Sesmas after she completed the first Miranda form indicating she wanted an attorney. Instead, the State argued, "they were responding to Ms. Sesmas' questions." According to the State, Sesmas then changed her mind, so the police properly re-Mirandized her. The State argued that, under these circumstances, Sesmas knowingly and voluntarily waived her right to an attorney. Sesmas, on the other hand, argued that after she invoked her right to counsel, police misled her by saying that an attorney would have to come from Wichita. She said that then, "rather than stopping the conversation, these two detectives then continue to talk to her. And allow her to have this very friendly [nonconfron- tational], but highly incriminating conversation." According to Sesmas, "then [the detectives] say, well, you want to talk about these family things that are important to you, but we need you to waive your constitutional rights to do that, she of course then does that." She also argued that Ortiz-Vives' dual role as interpreter and interrogator caused "great concerns about that and its impact on the voluntariness of this interrogation." VOL. 311 SUPREME COURT OF KANSAS 273

State v. Sesmas

The district judge stated that he reviewed the transcript and video recording of the detectives' interview. He then ruled:

"Ms. Sesmas was paying attention during the Spanish language Miranda, but did ask questions on page ten, eleven, and twelve that seemed to indicate that she would be willing to talk if a lawyer came, and then she asked questions about her children, where are they, how were they brought here, is my husband here too. But she initiated those questions about her children and her husband. "The lawyer question is a little more troubling, and I'll admit that. But within a relatively short time, Ms. Sesmas changed her position, without any apparent influence, from declining to speak to the officers under Miranda to agreeing under Miranda to speak to the officers and answer questions. "The fact that the statement was made that she is entitled to a lawyer, but the lawyer would have to come from Wichita and how long that would take, Detective Ortiz did not know. That is troubling to me. But without testimony from Ms. Sesmas, I don't know what effect that had on her. I can't speculate. But I can make an objective assessment of what her subsequent behavior and conduct was. "She signed the second Miranda form after again being advised of it. In that second Miranda form, she agreed to speak to law enforcement on these issues. Once past the Miranda issues and the second Miranda form was signed, according to the video at 12:26:40, but once past the Miranda issues, the defendant was very engaged in answering questions."

The district judge also reviewed other indicia of voluntariness, including Sesmas' physical condition, apparent cohesiveness, and the length of the interrogation. The district judge noted that the "tone of the interview . . . was in no way coercive or threatening or intimidating." With respect to Sesmas' comments about her son and niece, the district judge said "[t]here were no promises made by law enforcement officers to her about anything that might happen in this case or anything about her kids concerning CPS or any other related matters to her kids." Ultimately, the district judge concluded that—despite his concerns about Ortiz-Vives' dual role and statement that it "could take quite a while" for a lawyer to arrive from Wichita—"under the totality of the circumstances . . . Sesmas knowingly, intelligently, freely, and voluntarily waived her Miranda rights." The district judge also concluded that Sesmas' confession was voluntary. At Sesmas' jury trial, the State produced evidence of Sesmas' faked pregnancy and showed that Sesmas and Abarca never sent messages to one another about Abarca willingly giving Sesmas the baby. The State also introduced messages from Sesmas to 274 SUPREME COURT OF KANSAS VOL. 311

State v. Sesmas friends and family claiming that she had given birth. An eyewitness testified she saw Sesmas at Abarca's apartment at the time of the murder, and doorbell camera footage from the apartment complex showed Abarca's truck there at that time. State witnesses also explained the DNA tests establishing the identity of the baby Sesmas had with her when she was arrested. And a ballistics expert testified that the gun found in Sesmas' closet was the one used to shoot Abarca. The expert also testified that the amount of force required to pull the trigger on the gun made it unlikely that it discharged accidentally. Ortiz-Vives testified over a standing defense objection "pursuant to pretrial litigation" about Sesmas' interrogation and confession. Ortiz-Vives testified about reading Sesmas her Miranda rights the first time; he explained that she checked "no" at the bottom indicating that she did not wish to speak to the detectives. Sesmas again objected, this time on the grounds that it was not appropriate to inform the jury that Sesmas originally asserted her right not to speak with police. The district judge overruled the objection, stating that "under the totality of the circumstances, I have to view it as a harmless error because she apparently wanted to talk, she again reiterated after a few minutes that she did want to talk, and she continued to talk." After the district judge's ruling, Ortiz-Vives finished detailing Sesmas' confession for the jury. Sesmas put on no evidence. During closing, her counsel did not contest that she was the shooter but argued the killing was not intentional. The jury convicted Sesmas as charged, and the district judge sentenced Sesmas to a hard 50 life term for the murder as well as 61 months for the kidnapping and 13 months for the aggravated interference with parental custody. The district judge ran the lesser sentences concurrent to each other but consecutive to the hard 50.

DISCUSSION

Voluntariness

Sesmas argues that because she was told her son and niece were in Texas Child Protective Services (CPS) custody and it "could take quite a while" for an attorney to arrive from Wichita, VOL. 311 SUPREME COURT OF KANSAS 275

State v. Sesmas her confession was involuntary, and its admission at trial was reversible error. This error was preserved for argument on appeal by her arguments at the Jackson v. Denno hearing and by her standing objection at trial. See State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014). Sesmas' counsel clarified at oral argument before this court that this appellate challenge is limited to a Fifth Amendment due process theory; she does not directly assert on appeal that her Mi- randa rights were violated. See State v. Swindler, 296 Kan. 670, 677-78, 294 P.3d 308 (2013) (distinguishing Miranda challenges from Fifth Amendment due process voluntariness challenges). That said, we note that Ortiz-Vives improperly reinitiated discussion about the crimes and their investigation after answering Sesmas' questions about her family. See State v. Thurber, 308 Kan. 140, 149-56, 420 P.3d 389 (2018) (defendant asking questions of law enforcement unrelated to investigation after invoking Miranda does not allow police to reinitiate interrogation). He asked Sesmas if she wanted to talk to detectives after she had invoked her right to remain silent, saying, "OK. So are you willing to talk to us or?" Sesmas does attempt to argue indirectly on appeal that this Miranda error should color our evaluation of the voluntariness of her confession. But analysis of Miranda violation questions is distinct from analysis of Fifth Amendment voluntariness questions. "'[T]he Supreme Court has held that Miranda does not coincide with the constitutional standard of voluntariness, but is only a prophylactic procedure to aid in the [sic] determining the admissibility of confessions.'" State v. Morton, 286 Kan. 632, 649- 50, 186 P.3d 785 (2008) (quoting 3 Ringel, Searches & Seizures, Arrests and Confessions § 24:5 [2d ed.1993]). We review the voluntariness of a confession under a dual standard of review. Substantial competent evidence must support the factual underpinnings of the district judge's decision, and we evaluate the ultimate legal conclusion drawn from those facts de novo. As an appellate court, we do not reweigh evidence or assess credibility of witnesses. It is the prosecution's burden to prove voluntariness by a preponderance of the evidence under the totality of the circumstances. See State v. Lowery, 308 Kan. 1183, 1218, 276 SUPREME COURT OF KANSAS VOL. 311

State v. Sesmas

427 P.3d 865 (2018); State v. Gibson, 299 Kan. 207, 214, 322 P.3d 389 (2014). The following list of nonexclusive factors is typically considered:

"(1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in conducting the interview; and (6) the accused's fluency with the English language. [Ci- tations omitted.]" Gibson, 299 Kan. at 214.

In addition,

"[t]hese factors are not to be weighed against one another with those favorable to a free and voluntary confession offsetting those tending to the contrary. In- stead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act." State v. Randolph, 297 Kan. 320, Syl. ¶ 3, 301 P.3d 300 (2013).

Sesmas submits three reasons to overturn the district judge's ruling that her confession was voluntary:

"[She] began the interview at a disadvantage because she did not speak English fluently. She indicated she didn't want to talk to the officers without an attorney, but wa[]vered when, inexplicably, she was told that an attorney would have to be brought from Wichita, which would 'take quite awhile'. The officers promised she could have an attorney, but then essentially withdrew that promise by implying, 'But who knows when?' In the meantime, her children were in CPS custody, with Ms. Sesmas's husband also in jail and the children's father two states away."

These arguments essentially center on the fifth and sixth voluntariness factors, alleging law enforcement was unfair in conducting the interview and Sesmas was handicapped by her lack of English fluency. These arguments are unavailing. First, while it is apparently true that Sesmas is not fluent in English, she ignores that Ortiz-Vives was brought in to translate Tennyson's English questions into Sesmas' native Spanish. The record shows that Ortiz-Vives is a certified Spanish translator in the Dallas Police Department. While use of an interpreter who was not also an interrogator would have been a better practice, Ortiz- Vives' dual role alone did not demonstrate, as the district judge VOL. 311 SUPREME COURT OF KANSAS 277

State v. Sesmas noted, that his "translations were inappropriate or misstated, whether intentionally or unintentionally." Second, Ortiz-Vives' statement that it "could take quite a while" for an attorney to arrive from Wichita may have been literally accurate because of the distance but somewhat misleading about the actual time it would take to bring in counsel to assist Sesmas. Texas has attorneys too. But it is nevertheless clear that the statement could not have been a factor in forcing Sesmas to confess. After it was made, she had no trouble invoking her right to remain silent on the first Miranda rights form. Third, Sesmas' emphasis on CPS's custody of her son and niece is unpersuasive. Sesmas started the conversation about her family members, asking questions about their whereabouts. Ortiz- Vives gave her straightforward, factual responses and made no threats or promises related to the subject matter of her questions. In fact, he allayed some of Sesmas' concerns, telling her that the children did have clothes and taking down her son's father's phone number to give to CPS. Sesmas had no reason to believe, and police did not lead her to believe, that her decision about whether to speak with police would affect her ability to see her children or alter their custody status. On the totality of the circumstances in the record described above, substantial competent evidence supports the factual underpinnings of the district judge's decision that Sesmas' confession was voluntary and admissible.

Reference to Invocation of Rights

Sesmas next argues that the State violated her due process rights when Ortiz-Vives testified at trial that Sesmas initially declined to speak with the detectives. Sesmas relies on Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In Doyle, the United States Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619. The Court considered this rule a necessary partner to Miranda, because "every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested" and "it 278 SUPREME COURT OF KANSAS VOL. 311

State v. Sesmas would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." 426 U.S. at 617-618. A line of questioning constitutes a Doyle violation if it "center[s] on what was not said." State v. Hernandez, 284 Kan. 74, 91, 159 P.3d 950 (2007). Whether an alleged Doyle violation infringes on a defendant's constitutional rights is a question of law; de novo review applies. State v. Fisher, 304 Kan. 242, 248, 373 P.3d 781 (2016). If this court finds a Doyle violation, it then applies a constitutional harmless error analysis to determine if the State proved beyond a reasonable doubt that the error did not contribute to the verdict in light of the entire record. Fisher, 304 Kan. at 248; see State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). Here, Ortiz-Vives' testimony that Sesmas initially invoked her right not to speak to law enforcement by checking "no" on the first Miranda form crossed the Doyle line. We must therefore determine whether the error is reversible or harmless. When conducting this analysis, an error "must be scrutinized and viewed in the light of the trial record as a whole, not on each isolated incident viewed by itself." Hernandez, 284 Kan. at 95. Sesmas argues that the error cannot be harmless because her credibility was central to the case; the jury's verdict hinged largely on whether it believed Sesmas' account that the gun discharged accidentally. In Fisher, this court held that the State violated Doyle by impeaching the veracity of defendant Matthew Fisher's testimony by pointing out that he "[n]ever said a word about these things until today." 304 Kan. at 250. This court noted that such a violation flirted with disaster because Fisher's guilt "depended on whether the jury believed his most sympathetic version of events." 304 Kan. at 250. Nevertheless, we held the Doyle violation was harmless error because

"the prosecutor also thoroughly impeached Fisher's credibility by emphasizing the inconsistent content of the communications when Fisher was not silent. Any further negative impact on Fisher's credibility arising from the prosecutor's two references to Fisher's selective silence would have been strictly marginal, not VOL. 311 SUPREME COURT OF KANSAS 279

State v. Sesmas enough to have had [a] reasonable possibility of contributing to the verdict." 304 Kan. at 250-51.

This case is similar. The State attacked Sesmas' credibility by eliciting Ortiz-Vives' testimony about Sesmas' evolving stories, including the apparent fabrication of an anonymous kidnapper- turned-murderer for hire. The State further argued that a common- sense interpretation of the physical evidence and facts undermined Sesmas' credibility. As the State pointed out, Sesmas' purported plan merely to threaten Abarca, take the baby, then return to Texas and pass the baby off as her own did not make sense. If Sesmas left Abarca alive but took the baby, Abarca could have immediately contacted law enforcement to report the kidnapping and re- gain custody. The State also introduced the ballistics expert's testimony that it was unlikely that the gun used in the killing could have discharged accidentally, as Sesmas insisted. In short, the State thoroughly undermined Sesmas' credibility on several fronts. Ortiz-Vives' fleeting mention of Sesmas' invocation of her rights "would have been strictly marginal, not enough to have had reasonable possibility of contributing to the verdict." Fisher, 304 Kan. at 251. Any minimal harm also was mitigated by Ortiz-Vives' continuing testimony that Sesmas nevertheless immediately continued speaking to him. The Doyle violation in this case was harmless error.

CONCLUSION

The district judge did not err by admitting Sesmas' voluntary confession. While the State did violate Doyle, the violation was harmless. We affirm the judgment of the district court.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 119,862 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

280 SUPREME COURT OF KANSAS VOL. 311

In re Mayes

Bar Docket No. 27058

In the Matter of BRENT E. MAYES, Respondent.

___

ORDER OF DISBARMENT

ATTORNEY AND CLIENT—Disciplinary Proceeding—Disbarment.

In a letter signed March 2, 2020, addressed to the Clerk of the Appellate Courts, the respondent Brent E. Mayes, an attorney admitted to the practice of law in Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217(b) (2019 Kan. S. Ct. R. 267). On February 26, 2020, and March 2, 2020, through counsel, the respondent self-reported to the Disciplinary Administrator facts that support conclusions that the respondent violated Kansas Rules of Professional Conduct 1.1 (2019 Kan. S. Ct. R. 295) (competence), 1.4(a) (2019 Kan. S. Ct. R. 299) (communication), 1.8(e) (2019 Kan. S. Ct. R. 315) (conflict of interest), and 8.4(c) (2019 Kan. S. Ct. R. 387) (misconduct). This court finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred. IT IS THEREFORE ORDERED that Brent E. Mayes be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked. IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of Brent E. Mayes from the roll of attorneys licensed to practice law in Kansas. IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268).

Dated this 18th day of March 2020. VOL. 311 SUPREME COURT OF KANSAS 281

State v. Gonzalez

No. 119,492

STATE OF KANSAS, Appellee, v. EFRAIN GONZALEZ JR., Appellant.

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SYLLABUS BY THE COURT

1. CRIMINAL LAW—Attempted Crime Conviction—Sufficiency of Evidence Analysis. To support a conviction for an attempted crime, the evidence must permit a rational fact-finder to find beyond a reasonable doubt the defendant intended to commit the particular crime alleged.

2. SAME—Defendant's Specific Intent Required to Convict under Aiding and Abetting Theory. To convict a defendant 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.

3. SAME—Two Offenses from Same Conduct—No Double Jeopardy Viola- tion if An Element Not Required by Other. Convictions for two offenses arising from the same conduct do not violate double jeopardy if each offense requires an element not required by the other.

4. EVIDENCE—Excluded Evidence—Appellate Review. Failure to make a sufficient proffer of excluded evidence precludes appellate review because there is no basis for the appellate court to consider whether the trial court abused its discretion.

5. TRIAL—Jury Selection—Batson Challenge—Appellate Review. A three- step process is used under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to consider racial discrimination claims over the exercise of peremptory challenges during jury selection. First, the party contesting the strike must make a prima facie showing the other party exercised a peremptory challenge based on race. Second, if the requisite showing is made, the burden shifts to the party exercising the strike to articulate a race- neutral explanation for striking the prospective juror in question. In this second step, the striking party is required only to put forth a facially valid reason for exercising the strike, which does not need to be persuasive or plausible. Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. The district court's ruling on a Batson challenge is reviewed for abuse of discretion.

Appeal from Wyandotte District Court; ROBERT W. FAIRCHILD, judge. Opinion filed March 27, 2020. Affirmed.

Jonathan Laurans, of Kansas City, Missouri, argued the cause and was on the brief for appellant.

282 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez

Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Efrain Gonzalez Jr. appeals from convictions of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. They stem from an incident in which the passenger in a car Gonzalez was driving shot and killed a man outside a bar in Kansas City. The central question on appeal is whether sufficient evidence to prove intent to commit a robbery exists to support the convictions. What little is known from the trial evidence is that Gonzalez pulled his car up behind the bar after eluding a police traffic stop a few minutes earlier and that the victim was shot. Nothing showed what might have been said between the victim and the car's occupants, so the State tried to prove the attempted aggravated robbery by relying on Gonzalez' text messages shortly before the killing. Arguably, the text messages and circumstances were ambiguous about whether the pair intended to rob the victim, so more was required. We hold the evidence sufficient under our standard of review. What tied the ambiguous evidence together was the investigators' explanations about the meaning typically associated with the language in the texts, as well as a detective's testimony that one of the pair discussed pinpointing someone for a robbery. Taken together, this provided the jury a sufficient basis to infer the pair's intention to rob the victim. As for the remaining issues, we hold they do not warrant reversal, so we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At 12:29 a.m., on November 27, 2016, Officer Kenneth Gar- rett stopped a vehicle for suspicious behavior and a noise violation. He described the vehicle as a boxy, black, 4-door Chevy. As Garrett approached, the vehicle drove off. The officer reported this to dispatch and began a search. Just blocks from the traffic stop, Louis Scherzer was at a bar with family and friends. The bar's surveillance footage shows him going out the back door at 12:36 a.m. Within the next three VOL. 311 SUPREME COURT OF KANSAS 283

State v. Gonzalez minutes, there were gunshots. Scherzer emerged mortally wounded from the alleyway and collapsed against the bar's front door. He pulled out his own gun and shot back. Scherzer still had his keys and wallet containing cash when he died within minutes from a single gunshot wound. The bullet entered the lower-right portion of his back and exited around the left collar bone. A witness said gunfire came from an older, boxy, black car that drove away. People outside the bar flagged down Officer Garrett, who was still in the area looking for the car he had tried to stop. Garrett saw the car drive past the front of the bar but could not locate the vehicle after that. Later that same day, police discovered outside Gonzalez' house a car matching the description of the one involved in the traffic stop and shooting. A trail of blood led inside the house, where officers found more blood and a .45 caliber handgun. Police arrested Gonzalez at the University of Kansas Medical Center, where he went for treatment of a gunshot wound to his foot. Forensic analysis showed the gun was fired twice at the crime scene. An investigating detective testified Filiberto Espinoza, the occupant in Gonzalez' car, fired the shot that killed Scherzer, and Gonzalez shot himself in the foot. The State's evidence tending to explain why Espinoza shot Scherzer consisted of text messages between Gonzalez and others around the time of the crime. In texts with his girlfriend from Gon- zalez' phone, she asked him to come home. He told her shortly before midnight, "I got some shut [sic] to hadle [sic], baby." At 12:10, he told her, "I'm teammate's grip," and when she asked, "huh?," he replied "tanna [sic] get this paper, babe." At 12:31 a.m., about the time of the traffic stop, Gonzalez messaged "high speed" to a friend. At 12:42 a.m., after Scherzer was shot, the friend replied "were you in one RN?" Gonzalez explained "yeah, they dumped at me." When asked why, he responded "Beto dumped at them." "Beto" is Espinoza's nickname. Gonzalez told his friend to "look SC," seemingly referring to a Snapchat video he took of himself leaving the traffic stop. When the friend asked whether "they shot at you" while he was "driving off," Gonzalez said "nah, smoked dud [sic]." 284 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez

Two police detectives, Danon Vaughn and Tiffany Burgtorf, testified without objection they had experience investigating robberies and had heard people refer to robbery as trying to get paper. When asked "[w]hat does it mean as a robbery investigator when someone says that?" Vaughn answered, "It means a person is gonna go out and find some money, take some money from someone." When asked on redirect-examination what evidence linked Gonzalez to Scherzer's death given that Espinoza fired the fatal gunshot, Vaughn said,

"He refers to Mr. Espinoza as a teammate right before he says they're gonna get that paper, meaning they're going to rob someone, just multiple occasions that they are together during this entire thing. He also mentioned that they discussed the robbery. They were together during the robbery. They were together when Mr. Scherzer was—was shot during that attempted robbery."

On recross-examination, defense counsel continued probing the issue with the following exchange:

"Q. Do you have any evidence that Mr. Gonzalez . . . said . . . Mr. Espinoza, shoot him? "A. No. "Q. Do you have any evidence that Mr. Gonzalez said to Mr. Espinoza, I want his money? "A. Yes. "Q. And that evidence would be what? "A. That evidence would be his admission. That evidence would be the fact that they discussed pointing out Mr. Scherzer, identifying, pointing—pinpointing a victim, targeting a victim for the robbery that they attempted to do when they murdered Mr. Scherzer."

At that point, the prosecutor interrupted for a bench conference, during which she argued defense counsel was "opening the door for the proffered statement." The only clue in the record about what she was referring to comes from the district court's response, "Yeah, because he's got a statement from the co-defendant that says he was—he was the one that—I mean, your client was the one that came up with the idea . . . of the robbery." The court told defense counsel he would let the State "bring it in if you go this way." The prosecutor added "we have evidence that his client said the robbery was his idea . . . and that's evidence in this case. . . . He's opened the door for his statement, too." VOL. 311 SUPREME COURT OF KANSAS 285

State v. Gonzalez

When the recross-examination resumed, defense counsel changed course, asking only two more questions about the timing of Gonzalez' text messages. No statements like the ones described at the bench conference were admitted at trial. After the State rested, Gonzalez put on testimony from his mother, seeking to establish he had consumed marijuana and a Xanax that might have impaired him at the time of the crimes. Gonzalez also sought to prove his intoxication through testimony from Espinoza, but this was prevented when Espinoza invoked his Fifth Amendment privilege against self-incrimination. In closing arguments, the State focused on the homicide. It argued the jury should convict Gonzalez of premeditated murder because the evidence showed Scherzer was "shot dead in the back without a chance to defend himself," which would not have happened if it was just a robbery gone wrong. It also asserted if the jury did not convict on that offense, it should still find him guilty of felony murder, for which it argued the jury needed only to find he was "actively participating with the goal to achieve an aggravated robbery." And in alleging Gonzalez and Espinoza were engaged in a robbery when the shooting occurred, the prosecutor pointed to Gonzalez referring to Espinoza as his "teammate," arguing this established a common goal. She also contended Gon- zalez' phrase "trying to get the paper means money, robbery at that time of day." Defense counsel claimed there was no robbery and that the "sheer reading" of the text messages was that "somebody named Tanna is gonna get some paper." He questioned the detectives' testimony that this meant the pair intended to rob someone, asking "[w]here's the evidence of that?" He asserted the facts did not show there was a robbery attempt because the victim was shot in the back. He also argued the pair did not intend to kill because only one shot was fired at Scherzer. The jury convicted Gonzalez of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The district court imposed a hard 25 life sentence for the felony-murder conviction and two consecutive 32-month prison terms for the conspiracy and attempted aggravated robbery convictions. 286 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez

Gonzalez timely appealed directly to this court, raising seven issues we have consolidated into six and reordered: (1) whether sufficient evidence supports the convictions; (2) whether the attempt and conspiracy convictions were multiplicitous; (3) whether the district court's aiding and abetting jury instruction constituted clear error; (4) whether the district court erroneously permitted Espinoza to invoke his Fifth Amendment privilege against self- incrimination because he had already pleaded guilty and been sentenced for his participation in the crimes; (5) whether the State's peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) whether cumulative error requires reversal. Jurisdiction is proper. K.S.A. 2018 Supp. 22-3601(b)(3), (4).

SUFFICIENCY OF THE EVIDENCE

To support a conviction for an attempted crime, the evidence must permit a rational fact-finder to find beyond a reasonable doubt the defendant intended to commit the particular crime alleged. See State v. Harris, 310 Kan. 1026, 1030, 453 P.3d 1172 (2019); State v. Louis, 305 Kan. 453, 460, 384 P.3d 1 (2016). Gon- zalez questions whether an adequate evidentiary basis existed for the jury to find beyond a reasonable doubt that he and Espinoza intended to rob Scherzer at the time of the shooting.

Standard of review

"When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence 'in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.' A reviewing court 'generally will "not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations."' [Citations omitted.]" Harris, 310 Kan. at 1030.

Discussion

We divide the sufficiency analysis into two parts. First, we consider the evidence supporting an intent to rob—an element necessary for both the felony-murder and attempted aggravated robbery convictions. Second, we examine the evidence supporting the conspiracy conviction. We hold the evidence sufficient to support all convictions. VOL. 311 SUPREME COURT OF KANSAS 287

State v. Gonzalez

The evidence established the pair's intent to rob.

Aggravated robbery is "knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person . . . committed by a person who . . . [i]s armed with a dangerous weapon; or . . . inflicts bodily harm upon any person in the course of such robbery." K.S.A. 2018 Supp. 21-5420. First- degree felony murder "is the killing of a human being committed . . . in the commission of, attempt to commit, or flight from an inherently dangerous felony." K.S.A. 2018 Supp. 21-5402(a)(2). Aggravated robbery is an inherently dangerous felony. K.S.A. 2018 Supp. 21-5402(c)(1)(D). "An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." K.S.A. 2018 Supp. 21-5301(a). An attempt requires three elements: an overt act toward perpetrating the crime, intent to commit the crime, and failure to complete the crime. State v. Netherland, 305 Kan. 167, 177-78, 379 P.3d 1117 (2016). "To prove an attempt, the State 'must show . . . the actual intent to commit [the] particular crime.'" Louis, 305 Kan. at 460. The State's case against Gonzalez proceeded on an aider and abettor theory. This means the State had to prove he or another, for whose conduct he was criminally responsible, killed Scherzer and that the killing occurred while Gonzalez or another, for whose conduct he was criminally responsible, was trying to commit aggravated robbery. See Netherland, 305 Kan. at 178. The State did not have to prove Gonzalez "personally satisfied all of the elements of the underlying crime or that he fired the fatal shot." See Netherland, 305 Kan. at 178. Gonzalez contends there was insufficient evidence a robbery was being attempted when the shooting occurred. He points out there is no video of a robbery; no eyewitness testimony that a robbery was underway; no proof of a struggle between himself or Es- pinoza and Scherzer; and no social media, text, or other forms of communication that "unambiguously on its face, evinced either a plan to commit a robbery before the shooting, or confirms a robbery was the incident taking place when Espinoza and Scherzer 288 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez exchanged gunfire." He asserts the text messages in evidence— particularly "tanna get this paper"—are "too flimsy, broad and ambiguous to support a conviction" and that the detectives' interpretation represented mere speculation. We observe there does not seem to be any dispute as to whether there was sufficient evidence of an overt act in furtherance of the crime—if Gonzalez and Espinoza intended to rob Scherzer. Certainly the cumulative evidence about what happened behind the bar is sufficient for that element. And the jury could easily have concluded from the evidence that a robbery was not completed. See Netherland, 305 Kan. at 178 (noting jury could infer failure to complete aggravated robbery from fact that homicide victim's wallet containing cash and a debit card remained in her pocket at the crime scene). So this leaves us with the question whether a rational fact-finder could have found beyond a reasonable doubt that Gonzalez intended to rob someone. Intent is usually proven by inference arising from circumstantial evidence because direct evidence of a defendant's state of mind is rarely available. State v. Thach, 305 Kan. 72, 83, 378 P.3d 522 (2016). And when that is the case, the question becomes whether the circumstantial evidence is substantial or sufficient enough to sustain the conviction. We have held that circumstantial evidence "'need not rise to that degree of certainty which will exclude any and every other reasonable conclusion.'" Thach, 305 Kan. at 84 (quoting Casey v. Phillips Pipeline Co., 199 Kan. 538, 551, 431 P.2d 518 [1967]). "But mere suspicion, however strong, is not enough and juries are not permitted to base verdicts of conviction on suspicion." State v. Doyle, 201 Kan. 469, 489, 441 P.2d 846 (1968). An appellate court must determine whether the circumstances themselves are proved or inferred from other circumstances when a conviction is wholly based on circumstantial evidence. And a court must remain vigilant against inference stacking, which is im- permissible because when the State asks a jury to make a presumption based on another presumption, the State fails to carry its burden to present sufficient evidence. State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). VOL. 311 SUPREME COURT OF KANSAS 289

State v. Gonzalez

In Gonzalez' case, proof of intent to commit robbery admittedly begins with some ambiguous circumstances. His text messages on their face convey no such intent, and Scherzer's property was not taken. Likewise, while the evidence shows Gonzalez was in the alleyway late at night, minutes earlier he had evaded a traffic stop several blocks away and Officer Garrett was in the area looking for him. But what gives all the evidence a concrete context is Detective Vaughn's testimony that either Gonzalez or Espinoza said they had discussed finding a victim that night for a robbery. This testimony was admitted without objection. In the light most favorable to the State, we hold a rational fact- finder could have concluded beyond a reasonable doubt Gonzalez intended to rob Scherzer. See Harris, 310 Kan. at 1030. Taken as a whole, sufficient evidence existed to sustain both the felony- murder and attempted aggravated robbery convictions.

The evidence established an agreement to commit aggravated robbery.

Conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. K.S.A. 2018 Supp. 21- 5302(a). A formal agreement is not necessary. It is enough if the parties tacitly come to an understanding about the unlawful purpose, which can be inferred from sufficiently significant circumstances. State v. Sharp, 289 Kan. 72, 104, 210 P.3d 590 (2009). While the commission of a conspiracy requires such person or a coconspirator's overt act in furtherance of the conspiracy, Gonza- lez does not dispute the evidence's sufficiency to prove an overt act. See K.S.A. 2018 Supp. 21-5302(a). For that reason, our issue is whether the evidence supplied a basis for a rational jury to find beyond a reasonable doubt that Gonzalez entered into an agreement with Espinoza to commit an aggravated robbery. The investigators' explanations for the text messages exchanged before the shooting show Gonzalez and Espinoza operated as "teammates" in an enterprise to "get paper." And Detective Vaughn's testimony gave these messages more meaning by showing one of the pair admitted they discussed targeting a victim for a robbery. Taken together, we hold the evidence was sufficient for 290 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez a rational fact-finder to conclude Gonzalez entered into an agreement with Espinoza to commit an aggravated robbery.

THE AIDING AND ABETTING JURY INSTRUCTION

The district court instructed the jury without a defense objection:

"A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime intentionally aids another to commit the crime or advises another to commit the crime. "The person is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime if the person could reasonably foresee the other crime as a probable consequence of committing or attempting to commit the intended crime. "All participants in a crime are equally responsible without regard to the extent of their participation. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime."

The district court then instructed the jury on the elements of the substantive offenses: first-degree premeditated murder, its alternative charge of first-degree felony murder, the lesser included offense of second-degree intentional murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. Gonzalez contends the aiding and abetting instruction improperly lowered the State's burden of proof on the specific intent crimes with which he was charged. He points specifically to the instruction's language that "[t]he person is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime if the person could reasonably foresee the other crime as a probable consequence of committing or attempting to commit the intended crime." We agree giving the instruction was error but hold it was harmless under our clear error standard of review.

Standard of review

"When reviewing a jury instruction issue, an appellate court follows a well- known four-step analysis, whose progression and corresponding standards of review are: (1) the court considers the issue's reviewability from both jurisdiction and preservation viewpoints, employing an unlimited standard of review; (2) the VOL. 311 SUPREME COURT OF KANSAS 291

State v. Gonzalez court determines whether the instruction was legally appropriate, using an unlimited review; (3) it determines whether sufficient evidence existed, when viewed in the light most favorable to the requesting party, to support the instruction; and (4) if the court finds error, it then must decide whether the error was harmless, using the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011). "The first step affects the last one because an unpreserved issue will be considered for clear error, i.e., the error may be considered harmless unless the party claiming it can convince the court the jury would have reached a different verdict without the error. K.S.A. 2018 Supp. 22-3414(3) ('No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict . . . unless the instruction or the failure to give an instruction is clearly erroneous.'). [Citations omitted.]" Harris, 310 Kan. at 1034-35.

The first step in the progression can be quickly disposed of because Gonzalez did not object to the instruction at trial, so any error is reversible only if the instruction is clearly erroneous.

Discussion

To convict a defendant 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. State v. Littlejohn, 298 Kan. 632, 647, 316 P.3d 136 (2014). "[A]n instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm." State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). The instruction in Gonzalez' case accurately reflected Kansas' aiding and abetting statute. See State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 (2005); K.S.A. 2018 Supp. 21-5210. But it did not accurately state the applicable law, based on our caselaw limiting the statute's use when defendants are charged with aiding and abetting specific intent crimes. See, e.g., Engel- hardt, 280 Kan. at 132-33; State v. Overstreet, 288 Kan. 1, 10-13, 200 P.3d 427 (2009). In Engelhardt, the victim died after he was stabbed multiple times in the head and chest. At trial, there was conflicting evidence about who killed the victim—the defendant or the accomplice. The defendant argued the instruction regarding reasonably foreseeable crimes committed in pursuit of the intended crime lowered 292 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez the State's burden of proof on the premeditated first-degree murder charge and was confusing because he was also charged with several additional counts, including kidnapping, criminal threat, and battery. The defendant claimed the instruction did not specify which crime was the intended crime. The court held it was improper to give the instruction because it effectively operated as a felony-murder instruction, but the jury was not instructed on felony murder or the underlying felony, i.e., aggravated battery, that the State's appellate argument relied on. 280 Kan. at 133. In agreeing with the defendant, the Engelhardt court explained: "if a felony-murder theory had been advanced by the State and instructed upon, it is well established that PIK Crim. 3d 54.05 [the paragraph imposing liability for crimes intentionally aided] rather than PIK Crim. 3d 54.06 [the paragraph imposing liability for reasonably foreseeable crimes committed in carrying out the intended crime] would have been the appropriate aiding and abetting instruction." 280 Kan. at 133. For support, the court cited State v. Gleason, 277 Kan. 624, 637-38, 88 P.3d 218 (2004). There, the Gleason court held there was no error in failing to give the reasonable foreseeability instruction since in a felony-murder case when "the underlying felony is one inherently dangerous to human life . . . the foreseeability requirement is established as a matter of law." In Overstreet, the defendant drove a vehicle involved in a drive-by shooting and was charged with aggravated assault and attempted premeditated first-degree murder. The trial court gave the jury both aiding and abetting instructions—the one concerning crimes intended by the aider and abettor, and the one concerning reasonably foreseeable crimes other than the intended crime. The Overstreet court held this was error because, as in Engelhardt, the defendant was charged "with a specific-intent crime under an aiding and abetting theory." Overstreet, 288 Kan. at 11. The court reasoned the foreseeability instruction—indicating the jury did not need to find Overstreet possessed the specific intent of premeditation if it found premeditated murder was a reasonably foreseeable consequence of aggravated assault—"negated the State's burden to prove an essential element of the crime charged: premeditation." 288 Kan. at 11. Moreover, "the fact that it may be VOL. 311 SUPREME COURT OF KANSAS 293

State v. Gonzalez foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated." 288 Kan. at 12. In Gonzalez' case, other than felony murder and conspiracy, three of the crimes on which the jury was instructed required specific intent: premeditated first-degree murder, intentional second- degree murder, and attempted aggravated robbery. See State v. Deal, 293 Kan. 872, 883, 269 P.3d 1282 (2012) (intentional second-degree murder is a specific intent crime); State v. Gutierrez, 285 Kan. 332, 343, 172 P.3d 18 (2007) ("[A]n attempt requires specific intent."). But the conspiracy to commit aggravated robbery crime here needed only to be committed "knowingly." See State v. Butler, 307 Kan. 831, 852, 416 P.3d 116 (2018) (holding district court appropriately instructed jury it had to find defendant knowingly committed conspiracy to commit aggravated robbery). Based on this, the instructions as given did nothing to inform the jury which of the crimes submitted to it for deliberation was an "intended" crime and which might have been the "other crime" committed while carrying out the intended crime. Despite this, the State argues the instruction was not error because the reasonably foreseeable requirement applied only to the "unintended" crimes and not the "intended" crimes and the jury could have only associated the instruction to the felony murder. But this is an argument for harmlessness, not for the instruction's legal appropriateness. And even if the foreseeable instruction could be viewed as limited only to felony murder, it still misstated the law because elements of felony murder do not require a jury to find the killing was reasonably foreseeable. See Gleason, 277 Kan. at 638 ("[T]he foreseeability requirement is established as a matter of law . . . for a murder conviction based upon aiding and abetting an inherently dangerous felony . . . ."). We hold this instruction was error since it was not legally appropriate. That brings us to consider whether the error is clear error because there was no objection from Gonzalez to giving it. To declare clear error, a reviewing court must be firmly convinced the jury would have reached a different verdict without the error. See K.S.A. 2018 Supp. 22-3414(3); Harris, 310 Kan. at 1034.

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State v. Gonzalez

Gonzalez argues the instructional error requires reversal of all his convictions because the prosecutor, he believes, based her entire theory of guilt on aiding and abetting. To support this claim, he points to the prosecutor's statements that Scherzer would not be dead were it not for Gonzalez' assistance providing Espinoza with a gun and transportation. He then notes the prosecutor referenced "the erroneous aiding and abetting foreseeability" instruction when discussing the felony-murder charge and arguing death was a "reasonably foreseeable" consequence of robbing someone with a handgun. This, he claims, was the prosecutor's "ace-in-the- hole" because it allowed the State to gloss over what he believes was the scant evidence showing a robbery was planned or attempted. We hold Gonzalez has not shown under the clear error standard that the jury's verdict would have been different without the error. The jury acquitted him of premeditated first-degree murder, eliminating the concerns in Engelhardt and Overstreet. And because the district court properly instructed the jury on felony murder, the problem in Engelhardt did not arise. But even if the jury interpreted the aiding and abetting instruction to add a requirement to felony murder that the death be reasonably foreseeable, it would not have increased the likelihood of a guilty verdict because foreseeability is established in felony murder as a matter of law when the underlying felony is inherently dangerous to human life. Gleason, 277 Kan. at 638. The prosecutor did not argue Gonzalez could be guilty of attempted aggravated robbery or conspiracy to commit aggravated robbery only if those crimes were reasonably foreseeable off- spring of some other crime he intended to commit with Espinoza. This distinguishes Overstreet. Additionally, the felony-murder jury instruction, the State's evidence, and the State's argument presented aggravated robbery as the "intended crime" and the killing as "any other crime" committed while carrying out the attempted aggravated robbery. And the conspiracy charge alleging Gonzalez and Espinoza agreed to commit an aggravated robbery reinforces the conclusion that the jury would have viewed aggravated robbery as the "intended crime."

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For these reasons, we are not firmly convinced the jury's verdict would have been different had the "reasonably foreseeable" jury instruction not been given.

DOUBLE JEOPARDY

Gonzalez argues his attempted aggravated robbery and conspiracy to commit aggravated robbery convictions are multiplicitous. He raises this argument for the first time on appeal, which presents a preservation concern.

Preservation

Generally, the court does not address constitutional issues for the first time on appeal. Thach, 305 Kan. at 81. But it may do so if the party trying to raise a new issue shows a recognized exception:

"'(1) [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.'" State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019).

Gonzalez argues the court should consider this issue because the first two exceptions apply to his case. See Thach, 305 Kan. at 81 (party asserting new issue on appeal must explain why exception applies). The State does not object, although the State's failure to object does not control. See State v. Patterson, 311 Kan. 59, 62, 455 P.3d 792 (2020). This court has previously cited the second exception, i.e., the interests of justice and preventing denial of fundamental rights, as a reason to entertain multiplicity issues raised for the first time on appeal. See, e.g., State v. Davis, 306 Kan. 400, 419-20, 394 P.3d 817 (2017). In this instance, we will proceed to the merits.

Standard of review

"Multiplicity challenges raise questions of law subject to unlimited appellate review. In addition, the interpretation of statutes necessary to multiplicity analysis is subject to de novo appellate review. [Citations omitted.]" Hirsh, 310 Kan. at 338.

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Discussion

Convictions for two offenses arising from the same conduct do not violate double jeopardy if each offense requires an element not required by the other. State v. Schoonover, 281 Kan. 453, 495, 133 P.3d 48 (2006). The Double Jeopardy Clause prevents a defendant from being punished more than once for the same crime. Multiplicity in a criminal pleading involves charging a single offense in several counts of a complaint or information. State v. Mincey, 265 Kan. 257, 261-62, 963 P.2d 403 (1998). To establish two convictions are for the same offense, two things must be present: (1) the convictions arise from the same conduct, and (2) by a statutory definition there is only one offense. As to the first, if the conduct is discrete, the convictions do not arise from the same offense and there is no double jeopardy violation. But if two convictions arise from the same act or transaction, the conduct is unitary, and the second factor must be analyzed. Hirsh, 310 Kan. at 339. As to that, the court first asks whether the convictions arise from a single statute or many statutes. From that point, the analysis splits again. If the convictions are for several violations of a single statute, a unit of prosecution test applies, meaning the court examines the relevant statute to determine what the Legislature intended as the allowable unit of prosecution. But if the convictions are for violating different statutes, the same-elements test is applied. Hirsch, 310 Kan. at 339; Schoonover, 281 Kan. at 497- 98. That test "'emphasizes the elements of the two crimes'" and inquires "'whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.'" Schoonover, 281 Kan. at 467 (quoting United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 125 L. Ed. 2d 556 [1993]). In this case, neither party addresses whether the challenged convictions are based on unitary conduct. Gonzalez offers nothing on this point, and the State simply argues the convictions are not multiplicitous even if the underlying conduct was the same.

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The acts alleged by the State occurred on the same evening. And they were causally related to one another in that the conspiracy precipitated the attempt, and there was no apparent fresh impulse motivating the attempt, as distinguished from the agreement to commit the offense. See 281 Kan. at 497 ("[S]ome factors to be considered in determining if conduct is unitary, in other words if it is the 'same conduct,' include: [1] whether the acts occur at or near the same time; [2] whether the acts occur at the same location; [3] whether there is a causal relationship between the acts, in particular whether there was an intervening event; and [4] whether there is a fresh impulse motivating some of the conduct."). Even so, the conspiracy and aiding and abetting statutes each require an element not required by the other, so there is no double jeopardy violation. K.S.A. 2018 Supp. 21-5302(a) provides:

"A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or a co-conspirator."

And a conspiracy to commit aggravated robbery must be committed "knowingly," even though the statute identifies no particular mental state that must be proven. Butler, 307 Kan. at 852. Under the aiding and abetting statute, "[a] person is criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures the other to commit the crime or intentionally aids the other in committing the conduct constituting the crime." K.S.A. 2018 Supp. 21-5210(a). When the crime at issue is an attempt, the mental culpability required is intent to commit that crime. K.S.A. 2018 Supp. 21-5301. Accord- ingly, the conspiracy and the aiding and abetting attempted aggravated robbery convictions are not multiplicitous. Each requires proof of an element not required by the other. See Mincey, 265 Kan. at 266. Gonzalez acknowledges Mincey, but contends his convictions are still multiplicitous because, in his view, they were based on the same overt act. He analogizes this to a situation in which a single agreement to commit many crimes is improperly charged 298 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez as multiple conspiracies. See, e.g., Mincey, 265 Kan. at 268 (holding multiple punishments could not be imposed for multiple conspiracy convictions arising from a single agreement to commit multiple crimes). But this logic suffers from two deficiencies—it misapplies the same-elements test and misapprehends the multiplicity problem in the single-conspiracy, multiple-criminal-objectives cases. The same-elements test "'is concerned solely with the statutory elements of the offenses'" and "'has nothing to do with the evidence presented at trial.'" Schoonover, 281 Kan. at 467. The multiplicity issue in the single conspiracy, multiple-criminal-objectives cases is a unit of prosecution problem—with the unit of prosecution under "a general conspiracy statute" being the agreement, so a single agreement is one conspiracy no matter how many crimes the conspirators agreed to commit. See Mincey, 265 Kan. at 268 ("When separate conspiracies are alleged and both are founded on a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform an illegal act or acts."). There is no unit of prosecution problem here because the convictions arise from different statutes. We hold Gonzalez' convictions for conspiracy to commit aggravated robbery and attempted aggravated robbery are not multiplicitous.

THE FAILURE TO COMPEL ESPINOZA'S TESTIMONY

Gonzalez argues the district court erred when it refused to compel Espinoza's testimony. The court reasoned it would violate Espinoza's Fifth Amendment privilege against self-incrimination. The State contends this issue is not preserved because Gonzalez' trial counsel conceded the testimony was privileged and because he did not adequately proffer Espinoza's expected testimony. We agree Gonzalez made an inadequate proffer. By way of background, when the district court considered Gonzalez' desire to call Espinoza as a witness, Espinoza's counsel asserted two grounds for invoking the Fifth Amendment. First, Es- pinoza was pursuing a sentencing appeal. And, second, the time to file a postsentencing plea withdrawal motion had not yet run. In response, Gonzalez' counsel told the court,

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"Your Honor, we're gonna be asking questions regarding what he observed that night as regard to this defendant, not what Mr. Espinoza did and that's the reason we don't believe that there is a Fifth Amendment right. What we're gonna be asking specifically is the actions of . . . this defendant."

Espinoza's counsel countered that he believed the defense wanted to inquire whether Gonzalez was using drugs or intoxicated the night of the crime. And he suggested even Espinoza's limited testimony about Gonzalez' state of mind or intoxication would fall within the scope of Espinoza's Fifth Amendment privilege. The State agreed, noting that if Espinoza testified about Gonzalez smoking marijuana or taking Xanax, the State would be able to ask Espinoza about Gonzalez driving the car that night, their discussions about robbing someone behind the bar, and the other circumstances related to the voluntary intoxication issue. The court ruled Espinoza would not testify. It reasoned it would be "impossible . . . to limit [the testimony] in any meaningful way without prejudicing one side or the other." And it explained that although it was "not sure" the sentencing appeal "deal[ing] with just the departure issue . . . [was] enough" by itself, Espinoza still had time to move for a plea withdrawal and the appeal made "the risk . . . too high. I'm not willing to mess up two . . . trials." Nothing more was said or proffered about Espinoza's expected testimony. We hold there is an insufficient record about what Espinoza would have testified about as required by statute. K.S.A. 60-405 provides,

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers." (Emphasis added.)

This statute has dual purposes: (1) It assures the trial court is advised of the evidence at issue and the parties' arguments, and (2) it assures an adequate record for appellate review. See State v. Hudgins, 301 Kan. 629, 651, 346 P.3d 1062 (2015). In Gonzalez' case, any proffer reflected in the record was informal at best as the parties argued the merits, although that is not necessarily fatal. In State v. Evans, 275 Kan. 95, 62 P.3d 220 (2003), we held an informal proffer sufficient when 300 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez

"the record show[ed] that the State was well aware of the evidence in this case when it filed its motion in limine claiming that [defendant] would introduce testimony of witnesses who saw Reed holding the gun immediately after the shot was fired. [Defendant's] attorney further pointed out at the hearing that the defense had a witness who would also testify that Reed later admitted to killing Prince. The trial court was further made aware of the testimony of these witnesses through the State's argument in favor of its motion in limine and defense counsel's argument opposing the State's motion." 275 Kan. at 101.

In contrast, the Hudgins court held a defense counsel's informal proffer of a police department policy about high-speed car chases and counsel's assertion the officer violated that policy did not preserve a challenge to the evidence's exclusion on appeal. The court reasoned, "From the record created by Hudgins, we are not aware what, if any, departmental policy might be in dispute or how that policy may have been violated. As a result, we lack sufficient information to determine whether evidence of the unspecified violation might have been relevant." Hudgins, 301 Kan. at 651. The proffer in Gonzalez' case is much more like Hudgins than Evans. The prospect of Espinoza's testimony arose during a bench conference. There was no written motion with details about the testimony. In fact, the nature of Espinoza's testimony came from the prosecutor, who suggested defense counsel was trying to get Espinoza on the stand to say "I saw him take a Xanax or I saw him smoke marijuana." Defense counsel added only "we're gonna be asking questions regarding what he observed that night [in] regard to this defendant." It is not clear from this what Gonzalez anticipated Espinoza saying. But even if the proffer established Espinoza would say he saw Gonzalez smoke marijuana or take a Xanax, there is nothing else about any other potentially relevant details his testimony could provide such as how much, when, or what specifically he observed about Gonzalez' behavior near the time of the crime. Failure to make a sufficient proffer of excluded evidence precludes appellate review because there is no basis for the appellate court to consider whether the trial court abused its discretion. Hudgins, 301 Kan. at 651. We hold this proffer to be inadequate.

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State v. Gonzalez

THE BATSON CHALLENGE

Gonzalez argues the State exercised peremptory strikes to "sys- tematically eliminate[ ] many Hispanic jury panel members," violating his constitutional rights under Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (forbidding prosecutors from challenging potential jurors solely because of race or on the assumption jurors of the same race as defendant would not consider the State's case impartially). His brief focuses on Hispanic jurors 34, 39, and 44, whose strikes he challenged at trial. He also inexplicably adds on appeal the State's peremptory strike of juror 38, an Asian woman, whom he did not challenge at trial.

Additional facts

The State explained it struck prospective juror 34 because she was young, was a student, had no job, and had an arrest in 2017. It said it struck prospective juror 39 because she worked for a community mental health program and this might lead to a pro-defense bias. The State said it struck prospective juror 44, who identified herself as Hispanic, white, and African-American, because she was single, young, did not have children or a spouse, and had her job for less than a year. The prosecutor commented, "I prefer jurors who are married, who have a long time on the job, who have kids. Not because young people are bad. It's just because I prefer to choose people who are more invested in the community." She explained the State struck prospective jurors 2 and 3, both white women; 38, an Asian woman; and 56, an African-American man, based on youth, being single, having no kids, having no job or short employment, or some combination of these factors. Gonzalez argued the prosecutor's desire to exclude young people from the jury was itself discriminatory. He claimed prospective juror 34, while a student, also had a job as an administrator, so the only explanation for the challenged strike was race. He argued prospective juror 39, the community mental health worker, might not favor him at trial but would have been "helpful because one of the issues that we're raising is not guilty by reason of mental defect or disease." And he pointed out she was middle aged and lived in the community for a long time. He claimed prospective juror 44, while young, was 302 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez vested in the community because she lived there her whole life and was employed as a bank teller. After hearing the parties' arguments, the court simply ruled the State presented sufficient nondiscriminatory reasons to survive a Bat- son challenge.

Standard of review

Generally, each party may use their allotted peremptory strikes to reject potential jurors without stating a reason. State v. Gonzalez- Sandoval, 309 Kan. 113, 114, 431 P.3d 850 (2018). But the State's privilege to exercise peremptory challenges is subject to the Equal Protection Clause, which has been applied to forbid a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as the defendant would not be able to consider the State's case impartially. Batson, 476 U.S. at 89. Based on this principle, if a defendant lodges a Batson challenge, a three-step process ensues:

"Under the first step, the party challenging the strike must make a prima facie showing that the other party exercised a peremptory challenge on the basis of race. "Second, if the prima facie case is established, the burden shifts to the party exercising the strike to articulate a race-neutral reason for striking the prospective juror. This is a low burden because the justification need not necessarily be plausible or persuasive, even though it must be facially valid. The reason offered will be considered race neutral unless a discriminatory intent is inherent in the explanation. The opponent of the strike continues to bear the burden of persuasion. "In the third step, the district court determines whether the opponent has carried the burden of proving purposeful discrimination. This step hinges on credibility determinations because usually there is limited evidence on the issue, and the best evidence is often the demeanor of the party exercising the challenge. As such, it falls within the trial court's province to decide, and that decision is reviewed under an abuse of discretion standard. An appellate court gives 'significant deference' to the district court's rulings. "A district court abuses its discretion when it makes a decision based on an error of law or fact; or when it makes a decision that is otherwise arbitrary, fanciful, or unreasonable. [Citations omitted.]" State v. Williams, 308 Kan. 1320, 1328-29, 429 P.3d 201 (2018).

Discussion

When, as here, the State offers race-neutral explanations for a challenged strike and the trial court rules on whether the State has intentionally discriminated, the first prong of the Batson analysis is VOL. 311 SUPREME COURT OF KANSAS 303

State v. Gonzalez moot. See Gonzalez-Sandoval, 309 Kan. at 122. And Gonzalez— rightly—does not dispute the State's reasons for the challenged strikes were race-neutral on their face. The State's burden to come forward with a race-neutral reason for a strike is "'relatively low . . . the justification must be facially valid, but it need not necessarily be plausible or persuasive.'" 309 Kan. at 123. When the explanation offered does not relate to a characteristic of a particular race, that explanation is race-neutral. 309 Kan. at 123. The issue here turns on whether the district court abused its discretion by concluding the State in fact exercised the challenges for the reasons given, rather than offering them as a pretext for purposeful discrimination. At trial, Gonzalez bore the burden of showing pretext. This required the judge to assess the plausibility of the reasons given in light of all evidence with a bearing on them. Williams, 308 Kan. at 1329-30. Gonzalez did not at the time point the trial court to any empaneled jurors to whom the State's race-neutral reasons for the peremptory strikes also applied, although he does now on appeal. Under these circumstances, "comparability forms a poor basis for attacking the trial court's decision" because "[i]t is not the trial court's duty sua sponte to compare the information elicited from the other panelists with the characteristics named as reasons for striking the panelists whose removal is being challenged." State v. Campbell, 268 Kan. 529, 535, 997 P.2d 726 (2000). Nevertheless, the comparisons Gonzalez offers on appeal do not show the district court abused its discretion. As to prospective juror 34, who was a 26-year-old student stricken for not having a job and having a prior arrest, Gonzalez asserts the State's reason must have been pretext because seven people who served on the jury had less education. But this misses the point. The State's rationale for the strike was not lack of education but a perceived lack of investment in the community compared to older individuals with families and sta- ble employment. As to prospective juror 39, who was stricken for involvement in a community mental health program, Gonzalez identifies an empaneled juror's spouse who worked for a "community-based organization." But that does not explain how the State's concerns about a juror involved in a community mental health program should apply to any 304 SUPREME COURT OF KANSAS VOL. 311

State v. Gonzalez person who works for a "community-based organization," let alone a spouse. As to prospective juror 44, stricken for youth, job history, and not having a spouse or children, Gonzalez notes one empaneled juror was only 18, did not have children, and had only had his current job for six months. But the State exercised half its peremptory strikes for reasons relating to indicia of community investment. And as previously mentioned, the State struck four other prospective jurors—jurors 2 and 3, both white women, juror 38, an Asian woman, and juror 56, an African-American man—based on youth, being single, having no children, no job or short employment, or some combination of these factors. Finally, we note in his appellate briefing Gonzalez mentions other peremptory challenges by the State in making his Batson claims to this court. But those were not argued to the district court, so any issues concerning them are unpreserved. See State v. McCullough, 293 Kan. 970, 994, 270 P.3d 1142 (2012) (holding defendant who failed to object when district court did not assess whether race-neutral reasons for strike were pretextual failed to preserve the issue for appellate review). We hold the district court did not abuse its discretion by finding Gonzalez failed to show purposeful discrimination given the State's race-neutral reasons for its peremptory strikes.

CUMULATIVE ERROR

Based on our analysis, Gonzalez establishes only a single error: the legally inappropriate aiding and abetting jury instruction. "One error is insufficient to support reversal under the cumulative error doctrine." State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018).

Affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 119,492 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 305

State v. Coleman

Nos. 115,293 115,294 115,295 115,305

STATE OF KANSAS, Appellee, v. JACQUELINE L. COLEMAN, Appellant.

_460 P.3d 368__

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Kansas Sentencing Guidelines Act—Calculation of Criminal History under Act. When calculating a person's criminal history, the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq., provides that convictions for crimes committed before Kansas designated crimes as person or nonperson offenses are to be classified as a person or nonperson offense by referring to comparable offenses in effect on the date the defendant committed the current crime of conviction.

2. SAME—Kansas Sentencing Guidelines Act—Calculation of Criminal His- tory under K.S.A. 2018 Supp. 21-6810. For a Kansas crime committed before Kansas designated crimes as person or nonperson offenses to be deemed comparable to a current offense under the Kansas criminal code, within the meaning of K.S.A. 2018 Supp. 21-6810, the earlier crime's elements cannot be broader than the current crime's elements. In other words, the earlier crime's elements must be identical to, or narrower than, the elements of the crime to which it is being referenced.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 24, 2017. Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed April 3, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: This is a consolidated appeal challenging sentences imposed for crimes occurring both before and after statutory amendments in 2015 to the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq. The common issue is 306 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman whether the district court properly scored a prior 1992 Kansas involuntary manslaughter conviction as a person felony for criminal history purposes. The arguments and rationale differ depending on the timing of the crime, but the outcome is the same. We affirm. In the direct appeal, which concerns two 2015 thefts committed after changes were made to the revised KSGA, we adopt the identical-or-narrower test from State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018) (statute under which a prior out-of- state conviction was obtained must be identical to or narrower than the crime to which it is compared for the two to be comparable). We hold the Wetrich test should also be used for Kansas crimes committed before the sentencing guidelines used the person or nonperson designations. And applying that test for the sentencings on the 2015 convictions, the prior 1992 Kansas involuntary manslaughter conviction at issue is comparable to the current Kansas involuntary manslaughter statute on reckless killings—a person crime. This means the district court correctly classified the 1992 Kansas involuntary manslaughter conviction as a person felony in the sentencings for the 2015 thefts. As to the probation revocation appeals for the sentences imposed on the pre-2015 thefts, Coleman asks us to use the identical- or-narrower test from Wetrich, instead of the comparability test used in our caselaw before the 2015 revisions, which Coleman perceives as less favorable to her cause. See State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015); see also State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (when examining prior conviction statutes, they need only be comparable, not identical). But we need not make that choice because the outcome would be the same under either test. No relief is available.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Jacqueline Coleman in three separate cases with theft after prior convictions. See K.S.A. 2011 Supp. 21- 5801(b)(6); K.S.A. 2013 Supp. 21-5801(b)(6). Those thefts occurred May 2, 2012, January 29, 2013, and February 22, 2014. She pleaded guilty to each offense. The presentence investigation reports recommended a C criminal history score, based in part on VOL. 311 SUPREME COURT OF KANSAS 307

State v. Coleman

Coleman's 1992 Kansas conviction for involuntary manslaughter that was scored as a person felony. The court conducted a single sentencing hearing in August 2014. It granted Coleman's request for dispositional departure and released her to 12 months' probation. The court imposed three consecutive underlying 13-month prison sentences—the high grid-box sentence for a severity level 9 felony and a C criminal history score. See K.S.A. 2018 Supp. 21-6804(a) (sentencing grid for nondrug felony crimes). Eight months later, the State charged Coleman with two new counts of theft after prior convictions. Those occurred April 25, 2015. She again pleaded guilty. The new convictions caused the district court to revoke Cole- man's probation in the earlier three cases. It then imposed a modified eight-month prison sentence for the 2012 conviction, and the original, consecutive 13-month underlying prison sentences for the 2013 and 2014 convictions. For the two new 2015 convictions, the court denied Coleman's request for a dispositional departure and sentenced her to the low-grid box 11-month prison term for one conviction, and a concurrent 5-month prison term for the other. It ordered these sentences to run consecutive to the consecutive sentences in the earlier three cases. Coleman timely appealed and the four cases were consolidated. Coleman argued the district court erroneously classified her 1992 involuntary manslaughter conviction as a person crime and abused its discretion by revoking her probation. A Court of Ap- peals panel affirmed on both points. State v. Coleman, No. 115,293, 2017 WL 1104789 (Kan. App. 2017) (unpublished opinion). Coleman timely petitioned for review. We granted review only on the criminal history classification. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60- 2101(b) (Supreme Court has jurisdiction to review Court of Ap- peals decisions upon petition for review).

SENTENCING FOR THE 2015 THEFT CONVICTIONS

The first question is whether the district court properly scored Coleman's 1992 Kansas involuntary manslaughter conviction as a 308 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman person felony when sentencing her in the 2015 case. This raises two sub-issues: (1) what rule should govern a pre-KSGA Kansas offense's classification for these convictions, and (2) was the classification for Coleman's 1992 Kansas involuntary manslaughter conviction correct under that rule? As to the first question, it is important to note we have not yet decided whether the Wetrich identical-or-narrower test, which dealt with a prior out-of-state conviction, applies to a pre- KSGA Kansas conviction. See Wetrich, 307 Kan. at 562.

Standard of review

Classification of prior offenses for criminal history purposes involves statutory interpretation. This is a question of law subject to unlimited review. Wetrich, 307 Kan. at 555.

Discussion

(1) What legal rule governs?

At the time of Coleman's 2015 crimes, the sentencing statute stated:

"(d) Except as provided in K.S.A. 21-6815, and amendments thereto, the following are applicable to determining an offender's criminal history classification: . . . . (2) All prior adult felony convictions, including expungements, will be considered and scored. Prior adult felony convictions for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed." (Emphasis added.) K.S.A. 2018 Supp. 21-6810.

This provision became effective on April 2, 2015, just a few weeks before Coleman committed the 2015 thefts. See L. 2015, ch. 5, § 1. It is the applicable statute. Before the statutory amendment, K.S.A. 21-6810 directed that all prior felony convictions be considered and scored. But the statute did not give explicit directions on how to score pre-KSGA offenses. See K.S.A. 2014 Supp. 21-6810(d)(2). That legislative silence caused this court to hold that in a case involving the person- crime classification for an out-of-state crime, the determination should be made by referencing the comparable Kansas crime at VOL. 311 SUPREME COURT OF KANSAS 309

State v. Coleman the time the out-of-state crime was committed. State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (Murdock I), overruled by Keel, 302 Kan. 560. The Murdock I decision resulted in a legislative change to K.S.A. 21-6810. In Keel, we noted this statutory revision added

"explicit language to K.S.A. 2014 Supp. 21-6810 . . . stating that, for criminal history purposes, a conviction or juvenile adjudication for an offense committed prior to July 1, 1993, shall be scored as a person or nonperson crime based on the classification in effect for the comparable offense under the Kansas Criminal Code when the current crime of conviction was committed. The legislature also stated its explicit intention that these amendments applied retroactively." Keel, 302 Kan. at 563.

More recently in Wetrich, 307 Kan. 552, the court adopted a construction of the KSGA's similar provision for out-of-state convictions. Wetrich held that comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed were to be referred to when classifying those out- of-state convictions as person or nonperson offenses. See K.S.A. 2018 Supp. 21-6811(e)(3). The Wetrich court held,

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562.

In reaching the conclusion that "comparable" means the prior offense must have elements identical to, or narrower than, the Kansas crime to which it is being compared, the Wetrich court first determined the word "comparable" is ambiguous. 307 Kan. at 559-60 (noting dictionary definitions suggested term could mean either identical or merely similar). Next, the court observed the KSGA's legislative history emphasized a desire for uniformity in sentencing among similarly situated offenders. 307 Kan. at 560- 61. It reasoned the alternative to the identical-or-narrower test— which it viewed as "an imprecise, ad hoc comparison" that relied on "'guesswork and intuition'"—undermined this legislative purpose and threatened to violate due process. 307 Kan. at 561. By contrast, it explained, the identical-or-narrower test furthers the 310 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman act's "goal of an even-handed, predictable, and consistent application of the law across jurisdictional lines." 307 Kan. at 561-62. Given the similarity in the applicable statutory language, we see no reason why the Wetrich court's statutory analysis should not apply with equal force to the phrase "a comparable offense" in K.S.A. 2018 Supp. 21-6810 for in-state Kansas convictions. The Act's underlying purpose of promoting sentencing uniformity is as relevant in Coleman's case as in Wetrich, and both Coleman's case and Wetrich concern person or nonperson classifications under the KSGA. We acknowledge the provision at issue in Wetrich implicated cross-jurisdictional problems between states, but the differences in how Kansas from time to time defines what constitutes criminal conduct, or how seriously that conduct should be treated when sentencing a current offense, can create similar problems. See State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010) (holding out-of-state identity theft convictions that would have been person crimes when they were committed should be scored as person crimes in sentencing for a new Kansas offense, despite Kansas having reclassified identity theft as a nonperson crime at the time of sentencing), overruled by Keel, 302 Kan. 560; State v. Dickey, 302 Kan. 1018, 1039-40, 350 P.3d 1054 (2015) (Dickey I) (concluding the statute governing classification of pre-KSGA burglary offense, which turned on whether prior conviction involved a dwelling, precluded a person-crime classification when Legisla- ture did not make that fact a statutory element of the pre-KSGA offense). This similarity favors a parallel result. The panel applied a pre-Wetrich test in resolving Coleman's claim. See Coleman, 2017 WL 1104789, at *3 ("[W]hen examining prior conviction statutes, they need only be comparable, not identical.") (citing Williams, 299 Kan. at 873). And it affirmed on that basis. But since this is a direct appeal from her sentence for the 2015 convictions, we determine the Wetrich test governs this question. See State v. Obregon, 309 Kan. 1267, 1271, 444 P.3d 331 (2019) (applying Wetrich in a direct appeal sentencing case; reasoning "'a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal'").

VOL. 311 SUPREME COURT OF KANSAS 311

State v. Coleman

(2) Was the classification correct for Coleman's sentences on the 2015 convictions?

We must next consider whether the 1992 Kansas statute under which Coleman's involuntary manslaughter conviction arose is identical to, or narrower than, the statute making involuntary manslaughter a person offense at the time of her 2015 theft convictions. The 1992 statute provided:

"(a) Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. "(b) As used in this section, an 'unlawful act' is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state, which statute or ordinance is enacted for the protection of human life or safety. "(c) Involuntary manslaughter is a class D felony." K.S.A. 21-3404 (Ensley 1988).

At the time of Coleman's 2015 crimes, the involuntary manslaughter statute read:

"(a) Involuntary manslaughter is the killing of a human being committed: (1) Recklessly; (2) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A. 2011 Supp. 21- 5402, and amendments thereto, that is enacted for the protection of human life or safety or a misdemeanor that is enacted for the protection of human life or safety, including acts described in K.S.A. 8-1566 and subsection (a) of 8-1568, and amendments thereto, but excluding the acts described in K.S.A. 8-1567, and amendments thereto; (3) in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567, and amendments thereto; or (4) during the commission of a lawful act in an unlawful manner. "(b) Involuntary manslaughter as defined in: (1) Subsection (a)(1), (a)(2) or (a)(4) is a severity level 5, person felony; and (2) subsection (a)(3) is a severity level 4, person felony." K.S.A. 2011 Supp. 21-5405.

Coleman argues the 1992 statute is broader in two respects: (1) the earlier statute defined an "unlawful act" to include an ordinance violation while the later statute does not; and (2) while the earlier statute prohibited the killing of another by committing a lawful act in an "unlawful or wanton manner," the later statute 312 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman only criminalizes killings done by committing a lawful act in an unlawful manner, i.e., the additional avenue of wantonness is absent. But these distinctions do not necessarily render the earlier crime broader. As to the first argument, the 1992 involuntary manslaughter statute's definition of "unlawful act" is seemingly broader than the later statute's definition, but the former has an additional requirement that deserves attention. The 1992 involuntary manslaughter statute specifies the unlawful act must be done wantonly before liability attaches. Under the 1992 criminal code, the criminal intent statute stated:

"(1) . . . [A] criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was willful or wanton. Proof of willful conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a wanton manner. "(2) Willful conduct is conduct that is purposeful and intentional and not accidental. As used in this code, the terms 'knowing,' 'intentional,' 'purposeful,' and 'on purpose' are included within the term 'willful.' "(3) Wanton conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of such conduct. The terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'recklessness' are included within the term 'wantonness' as used in this code." K.S.A. 21-3201 (Ensley 1988).

The later involuntary manslaughter statute criminalizes any unintentional killing done recklessly. Its statutory language was largely adopted in 1993. See L. 1993, ch. 291, § 21; State v. Pul- liam, 308 Kan. 1354, 1364, 430 P.3d 39 (noting Legislature subsequently eliminated explicit requirement that the killing be unintentional). And in the same legislation adopting that new language, the Legislature amended the culpable-mental-states statute to provide:

"Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." K.S.A. 21-3201(c).

VOL. 311 SUPREME COURT OF KANSAS 313

State v. Coleman

In 2011, when the Legislature recodified the criminal statutes, it again modified the culpable-mental-states statute. L. 2010, ch. 136, § 13. Under that revised statute,

"A person acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2011 Supp. 21-5202(j).

Although the prior statute enumerated more offenses that could support involuntary manslaughter charges if committed wantonly resulting in an unintentional death, those acts would all be crimes under the later provision criminalizing reckless killings. Admittedly, drawing a precise distinction between the terms "wanton" and "reckless" is somewhat elusive, but in State v. Makin, 223 Kan. 743, 746, 576 P.2d 666 (1978), the court observed:

"In determining whether particular conduct is wanton, each case must stand on its own footing as applied to the facts involved. Precise statements of what constitutes wanton or gross negligence are impossible. If the absence of negligence is white and gross negligence is black, then innumerable shadings of grey lie between. Using this analogy the legislature obviously seeks to exclude the pale grey areas from criminal responsibility. The appellant asks us to hold that, by excluding the pale grey areas from criminal responsibility, the legislature has reduced the penalty for the conduct in the black area. [Citation omitted.]"

The Makin court held that because wantonness was defined as requiring the defendant to realize imminent danger to another and recklessly disregard or act with complete indifference or unconcern for the probable consequences of an act, the term meant more than conduct that "creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances." 223 Kan. at 746 (holding Legislature did not intend vehicular manslaughter statute to be only source of criminal liability for acts that would otherwise constitute involuntary manslaughter). The statutory provision stating that wantonness "include[s]" several concepts, among which recklessness is one, might suggest wantonness is broader than recklessness. But the two terms are 314 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman often used interchangeably, or used to define one another. For example, the definition of recklessness adopted in K.S.A. 21- 3201(c) along with the new involuntary manslaughter statute in 1993 expressed that instead of wantonness including recklessness and other heightened negligence concepts, recklessness included wantonness and the heightened negligence concepts. Compare K.S.A. 21-3201 (Ensley 1988) (defining wantonness as including reckless disregard for a risk of imminent danger resulting from conduct), with Elliott v. Peters, 163 Kan. 631, 635, 185 P.2d 139 (1947) (quoting G.S. 1945 Supp. 8-531) (noting Legislature once defined "'reckless driving'" as driving "'in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property'"). And in the civil context, the court has observed that,

"Frequently the word 'reckless' appears to be used synonymously with the word 'wanton.' The word 'recklessness' has been given various shades of meaning but when it is used for the possible purpose of circumventing the defense of contrib- utory negligence, 'recklessness' should be regarded as synonymous with 'wantonness.' If it is less than wantonness it is in the nature of negligence and contrib- utory negligence is a defense to it in this state." Elliott, 163 Kan. at 635.

Black's Law Dictionary suggests the term "wanton," if different than recklessness, is an extreme form of recklessness:

"Unreasonably or maliciously risking harm while being utterly indifferent to the consequences. In criminal law, wanton [usually] connotes malice (in the criminal-law sense), while reckless does not. . . .

'Wanton differs from reckless both as to the actual state of mind and as to the degree of culpability. One who is acting recklessly is fully aware of the unreasonable risk he is creating, but may be trying and hoping to avoid any harm. One acting wantonly may be creating no greater risk of harm, but he is not trying to avoid it and is indifferent to whether harm results or not. Wanton conduct has properly been characterized as "vicious" and rates extreme in the degree of culpability. The two are not mutually exclusive. Wanton conduct is reckless plus, so to speak.' Rollin M. Perkins & Ronald N. Boyce, Criminal Law 879-80 (3d ed. 1982)." Black's Law Dictionary 1897 (11th ed. 2019).

Coleman argues the 1992 statute's reference to ordinance violations makes the offense broader. She uses as an example of this a hypothetical ordinance banning public smoking. In her view, she could have been liable for the 1992 crime if she killed another VOL. 311 SUPREME COURT OF KANSAS 315

State v. Coleman

"while smoking in a place where smoking was prohibited, in reckless disregard of that prohibition," but would not be liable now because violating a smoking ordinance is neither lawful nor a misdemeanor. But for that example to amount to involuntary manslaughter in 1992, the State would have had to prove much more than the violation and reckless disregard for the prohibition. It would need to also prove the ordinance was violated "under circumstances that show a realization of the imminence of danger to the person of another." K.S.A. 21-3201(3) (Ensley 1988). And it would have had to show the defendant "reckless[ly] disregard[ed]" or was "complete[ly] indifferen[t]" to "the probable consequences" of the act—not merely that the defendant disregarded the fact of the act's unlawfulness. K.S.A. 21-3201 (Ensley 1988). At oral arguments before this court, defense counsel enhanced the hypothetical public-smoking-violation to include a victim with an oxygen tank placed adjacent to a no-smoking sign. Counsel im- agined the victim died from an explosion caused by a person who saw the sign and the oxygen tank but ignored both when lighting a cigarette. But this perfectly illustrates why Coleman's argument fails. If there were circumstances showing a defendant realized there was imminent danger to another person—such as the oxygen tank hypothetical—and recklessly disregarded or was indifferent to the probability the other person would be killed, that defendant would be guilty under the later statute of reckless involuntary manslaughter, regardless of whether the underlying conduct was lawful. See State v. Louis, 305 Kan. 453, 461-62, 384 P.3d 1 (2016) ("Conduct designed to cause death—and, for that matter, conduct the actor knows is reasonably certain to cause death—is now sufficient to establish the defendant acted recklessly."); State v. Jenkins, 272 Kan. 1366, 39 P.3d 47 (2002) (holding evidence sufficient to support involuntary manslaughter when defendant, who killed other motorists when he lost control of his vehicle during an epileptic seizure, had history of accidents caused by epileptic seizures, established that defendant knew of the imminent danger he created to others and consciously disregarded that risk by operating a vehicle). 316 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman

As to Coleman's second argument, the later involuntary manslaughter statute is not narrower than the 1992 statute merely because it omits the phrase "or wanton" from the subsection addressing killings "during the commission of a lawful act in an unlawful manner." What constituted killings resulting from wanton conduct—either during lawful or unlawful activity—are criminalized as "reckless" killings under the later statute's subsection (a). If anything, the later statute, K.S.A. 2011 Supp. 21-5405, appears to criminalize more conduct than the earlier offense because, in subsections (a)(2) and (a)(3), the subsequent statute imposes strict liability for unintentional killings committed in the res gestae of acts contrary to statutes designed to protect public safety—without the wanton state of mind required under the 1992 statute. We hold the 1992 involuntary manslaughter statute and the later statute are comparable, since the earlier crime is narrower than the later one. And since the current crime designates involuntary manslaughter as a person felony, the district court properly scored the 1992 conviction as a person felony when sentencing Coleman's 2015 theft convictions.

SENTENCING FOR THE 2012, 2013, AND 2014 THEFT CONVICTIONS

We consider next whether classifying the 1992 conviction as a person crime resulted in an incorrect criminal history score for the purposes of sentencing Coleman's 2012, 2013, and 2014 theft convictions. This portion of the consolidated appeals arises as challenges to Coleman's probation revocations, and not as a direct appeal as with the sentences for the 2015 thefts. She claims the district court imposed an illegal sentence, arguing the identical-or-narrower test must apply based on the United States Supreme Court's decisions in Descamps v. United States, 570 U.S. 254, 260-61, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) (holding prior conviction can qualify as predicate offense for sentencing enhancement under federal Armed Career Criminal Act only if offense's elements are identical to or narrower than elements of generic offense), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (holding facts that increase maximum penalty for crime, other than prior VOL. 311 SUPREME COURT OF KANSAS 317

State v. Coleman convictions, must be submitted to jury and proved beyond a reasonable doubt). There are two problems with this. First, the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, so a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence. State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016) (Dickey II). In State v. Dubry, 309 Kan. 1229, 1233, 444 P.3d 328 (2019), the court declined to reach the merits of a constitutional claim identical to Coleman's but pertain- ing to an out-of-state crime's classification, because the district court correctly classified the crime according to the law at the time of sentencing. Second, we do not need to answer whether these sentencing challenges are entitled to be resolved under the identical-or-narrower test as she advocates, or the judicially adopted comparability rule for pre- KSGA Kansas offenses in Keel. The result is the same because we have already determined the 1992 statute is identical to or narrower than the current statute. On that basis, there is no question the 1992 conviction was properly scored in the earlier sentences. We explicitly do not resolve which standard is applicable when pre-KSGA Kansas offenses are used to sentence crimes that were committed before K.S.A. 2015 Supp. 21-6810 codified the comparability requirement.

Affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 115,293 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

318 SUPREME COURT OF KANSAS VOL. 311

In re Quinn

No. 119,148

In the Matter of ROSIE M. QUINN, Respondent.

___

ORDER OF REINSTATEMENT

ATTORNEY AND CLIENT—Disciplinary proceeding—Order of Rein- statement.

On November 21, 2018, this court indefinitely suspended the respondent's license to practice law in accordance with Supreme Court Rule 203(a)(2) (2018 Kan. S. Ct. R. 234), effective as of October 5, 2011. This court further ordered the respondent must satisfy certain conditions and undergo a reinstatement hearing pursuant to Supreme Court Rule 219 (2019 Kan. S. Ct. R. 270), before the court would consider any petition for reinstatement. In re Quinn, 308 Kan. 1413, 1421, 430 P.3d 51 (2018). On March 26, 2019, the respondent filed with this court a petition for reinstatement under Supreme Court Rule 219. This court subsequently found that sufficient time had elapsed to justify the reconsideration of the court's prior order of indefinite suspension, ordered the respondent to appear before a hearing panel of the Kansas Board for Discipline of Attorneys for a reinstatement hearing, and directed the reinstatement proceedings to proceed as directed under Rule 219. On February 27, 2020, this court received the hearing panel's Reinstatement Final Hearing Report. The hearing panel unanimously recommended this court reinstate the petitioner's license to practice law subject to certain conditions. Upon careful review of the hearing panel's findings of fact and conclusions of law, the court agrees with its recommendation and grants the respondent's petition for reinstatement, subject to her compliance with the conditions detailed below.

IT IS THEREFORE ORDERED that the respondent's license to practice law in Kansas is reinstated subject to the following conditions:

1. Prior to the respondent's return to active status, the respondent must comply with the annual continuing legal VOL. 311 SUPREME COURT OF KANSAS 319

In re Quinn

education requirements and pay all fees required by the Office of Judicial Administration and the Kansas Continuing Legal Education Commission. See Supreme Court Rule 208 (2020 Kan. S. Ct. R. 247); Supreme Court Rule 808 (2020 Kan. S. Ct. R. 573); Supreme Court Rule 811(b) (2020 Kan. S. Ct. R. 575). Upon receipt of proof of the completion of these conditions, the Office of Judicial Administration is directed to enter the respondent's name on the roster of attorneys actively engaged in the practice of law in Kansas.

2. The respondent's practice must be supervised by William Dunn for a period of two years. The respondent will allow Mr. Dunn to have access to the respondent's files, billing records, calendar, and trust account. Throughout the period of supervision, the respondent will meet with Mr. Dunn at least once every two weeks. Mr. Dunn will provide monthly reports of his supervision to the Office of the Disciplinary Ad- ministrator.

3. The respondent must enter a monitoring agreement with the Kansas Lawyers Assistance Program (KALAP.) The monitoring agreement will include such provisions as KALAP deems appropriate and will be for such a duration as KALAP deems appropriate.

4. The respondent must continue to make restitution payments as ordered in her criminal case.

5. The respondent must retain an accountant to assist the respondent in properly maintaining her trust account; prepare, file, and pay taxes; and pay her financial obligations.

6. The respondent must execute appropriate releases to allow her accountant, the KALAP staff, and her KALAP monitor to freely discuss the respondent with the Disciplinary Ad- ministrator's office and her practice supervisor, Mr. Dunn.

IT IS FURTHER ORDERED that this order be published in the official Kansas Reports and that the costs herein be assessed to the respondent.

Dated this 3rd day of April 2020. 320 SUPREME COURT OF KANSAS VOL. 311

In re Joint Application of Westar Energy and Kansas Gas and Electric Co.

No. 120,436

In the Matter of the Joint Application of WESTAR ENERGY, INC. and KANSAS GAS AND ELECTRIC COMPANY.

___

SYLLABUS BY THE COURT

1. KANSAS CORPORATION COMMISSION—Public Utilities—Statutes Do Not Conflict. K.S.A. 66-117d and K.S.A. 66-1265(e) do not conflict. K.S.A. 66-117d addresses the raw price utilities may permissibly charge for the sale of energy to customers producing a portion of their own energy while K.S.A. 66- 1265(e) addresses the rate structure utilities may use when selling energy to customers who began producing energy after 2014.

2. SAME—Public Utilities—Under K.S.A. 66-117d, utilities cannot charge customers producing their own energy more than they charge other customers based on that distinction.

3. SAME—Public Utilities—When Different Rate Structure Valid Under Stat- ute. K.S.A. 66-1265(e) allows utilities to use a different rate structure for certain customers producing a portion of their own energy. But for the different rate structure to be valid under Kansas law, the ultimate cost to the customer remains subject to the requirements of K.S.A. 66-117d.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 12, 2019. Appeal from Kansas Corporation Commission. Opinion filed April 3, 2020. Judgment of the Court of Appeals affirming the Kansas Cor- poration Commission is reversed. Judgment of the Kansas Corporation Commis- sion is reversed and the case is remanded with directions.

David C. Bender, pro hac vice, of Earthjustice, of Madison, Wisconsin, argued the cause, and Robert V. Eye, of Robert V. Eye Law Office, LLC, of Law- rence, and Sunil Bector, pro hac vice, of Sierra Club, of Oakland, California, were with him on the briefs for petitioners/appellants Sierra Club and Vote Solar.

Martin J. Bregman, of Bregman Law Office, L.L.C., of Lawrence, argued the cause, and Cathryn J. Dinges, of Westar Energy, Inc., was with him on the briefs for respondent/appellees Westar, Inc. and Kansas Gas and Electric Com- pany.

Brian G. Fedotin, general counsel, argued the cause, and Michael J. Duenes, assistant general counsel, was with him on the briefs for respondent/appellee Kansas Corporation Commission.

The opinion of the court was delivered by

VOL. 311 SUPREME COURT OF KANSAS 321

In re Joint Application of Westar Energy & Kansas Gas and Electric Co.

STEGALL, J.: In 2018, claiming declining sales and rising costs, Westar Energy, Inc. and Kansas Gas and Electric Company (Utilities) applied to the Kansas Corporation Commission (Com- mission) for a rate increase. The application included a proposed net rate increase of $52.6 million a year, as well as changes in the residential rate design. The Commission permitted numerous interested parties to intervene. Eventually, most of the parties reached a settlement agreement that included the rate design changes still at issue here. As the lower court explained, the Utilities have traditionally "recovered the costs of providing electricity through a two-part rate involving a flat service charge and a variable energy charge based on the number of kilowatt hours (kWh) used in a monthly billing period." In re Joint Application of Westar Energy and Kansas Gas and Electric Co., No. 120,436, 2019 WL 1575480, at *2 (Kan. App. 2019) (unpublished opinion). The Utilities, however, don't recover all their fixed costs through the flat service charge and have opted instead to fold some of those fixed costs into the variable energy charge. "A utility company could apportion its fixed costs among its customers at a flat rate and limit the variable rate to the recovery of actual generation costs, but utilities have traditionally sought to recover fixed costs through the variable rate as an incentive for customers to exercise prudent energy consumption." 2019 WL 1575480, at *2. This same interplay between designing a sound economic model of electricity generation and delivery, on the one hand, and promoting a policy of responsible energy production and use, on the other, is at the heart of today's dispute. This is because some of the Utilities' customers are less dependent than others on the primarily fossil-fueled electricity sold by the Utilities. These customers are known as "partial requirements customers" or "residential distributed generation customers" (DG customers) because they generate their own electricity from a renewable source such as wind or the sun. Still connected to the utility grid, so-called DG customers have always paid the flat service charge, just like everyone else. But as a class, they use less utility generated electricity and thus 322 SUPREME COURT OF KANSAS VOL. 311

In re Joint Application of Westar Energy and Kansas Gas and Electric Co. the variable energy portion of their utility bills is lower. In fact, in some cases, if the DG customer is generating more electricity than they use and selling the excess back to the grid, the variable energy portion of the bill may amount to a net-zero. According to the Utilities, this has created what is sometimes referred to in economic parlance as a "free rider" problem. Malm, An Actions-Based Estimate of the Free Rider Fraction in Electric Utility DSM Programs, 17 The Energy Journal No. 3, 41 (1996) (defining free riders as individuals who impose costs on the system without providing benefits such as payment). As one study, procured by the Utilities and made part of the record before the Commission, put it:

"When a customer conserves energy, the utility produces less energy, and thus incurs less energy production cost (e.g. fuel or purchased power). This should amount to a dollar-for-dollar savings for both the customer and the utility. However, when a customer conserves energy, the utility does not incur lower fixed costs, like capital investments in power plants (production demand), or substations and poles (distribution demand), or meters, billing, or customer service representatives (customer). When some customers are able to reduce their energy consumption by installing DG they avoid paying fixed costs that the utility continues to incur to provide the customer with needed services. Ultimately, those costs will be shifted to customers that do not have DG, resulting in a hidden subsidy from non-DG to DG customers."

To remedy this alleged economic imbalance, the Utilities sought and obtained approval of a new rate structure applicable only to DG customers—the residential distributed generation (RS- DG) rate design. And even though most of the intervenors joined the settlement agreement approving the new rate structure, some objected. For reasons that will become apparent, we need not recite the long procedural history before the Commission or sum- marize the substantial factual record below. It will suffice to note that the Commission ultimately issued its decision to approve the non-unanimous settlement agreement. Two of the objecting intervenors—the Sierra Club and Vote Solar (Renewable Energy Ad- vocates)—appealed the Commission's action to the Court of Ap- peals. All along, the Utilities' arguments have been driven by their view that the ongoing viability of their economic model depends VOL. 311 SUPREME COURT OF KANSAS 323

In re Joint Application of Westar Energy & Kansas Gas and Electric Co. on fixing the inequities created by DG customers not paying their "fair share." Of course, the overall rate structure chosen by the Utilities—which puts a portion of fixed costs into the variable energy charge—is itself designed to incentivize reduced energy consumption. As such, one would be justified in wondering whether the free rider problem identified by the Utilities is a feature of the system rather than a bug (because lower energy users will necessarily pay a smaller per-unit share of the fixed costs). In any event, though we are not insensible to the economic arguments, we find that in this particular case we can move past them with relative ease. This is because the policy favoring customers who generate a portion of their own energy from renewable sources was chosen by the policy makers in our Legislature and is cemented in Kansas law. And interpreting and enforcing statutes as they are written is the job of this court, not deciding whether those statutes effect good or bad policy.

ANALYSIS

Distributed generation systems are not new. On the heels of several energy and oil shortages in the 1970s, President Jimmy Carter and his administration confronted America's crisis relationship with fossil fuels. President Carter addressed the nation several times reiterating the need for "strict conservation" and the use of "permanent renewable energy sources like solar power" to protect the environment, achieve economic growth, and gain inde- pendence as a country. Carter, The Energy Problem, Address to the Nation (April 18, 1977), in 1 Public Papers of the Presidents of the United States: Jimmy Carter 656, 657 (1977); see also To- main, The Dominant Model of United States Energy Policy, 61 U. Colo. L. Rev. 355, 369-72 (1990) (highlighting President Carter's energy addresses and legislative developments). President Carter described these efforts as the "'moral equivalent of war.'" Carter, at 656. To show dedication to the cause, he even installed solar panels on the White House. See Outka, Environmental Law and Fossil Fuels: Barriers to Renewable Energy, 65 Vand. L. Rev. 1679, 1691 (2012). 324 SUPREME COURT OF KANSAS VOL. 311

In re Joint Application of Westar Energy and Kansas Gas and Electric Co.

At the same time, growing concerns that fossil fuels were contributing to global climate change also began to drive efforts to incentivize conservation and alternative-source energy generation. "In general, the process of balancing energy and environmental objectives has been a common theme underlying many of the major actions of Congress, the courts, the executive branch, and the independent agencies during the past year." Report of Com- mittee on the Environment, 1 Energy L.J. 119 (1980). Many worried that "the continued burning of fossil fuels will increase the level of carbon dioxide in the air. Some scientists believe that this increase could create a so-called 'greenhouse effect', increasing the temperatures at the earth's surface and causing dramatic changes in the climate." 1 Energy L.J. at 121. For example, in 1981 the International Council of Scientific Unions (ICSU) issued a statement warning that "growth in fossil fuel consumption, particularly by drawing upon the earth's very large coal resources" could create "increases in carbon dioxide concentrations and climate changes in the future" resulting in "temperature rise at the earth's surface." The ICSU noted that the "more vigorous the growth in energy and fossil fuel use, the more accelerated this process would be." Joint WMO/ICSU/UNEP Meeting of Experts: On the Assessment of the role of CO2 on Climate Variations and their Impact 1-2 (January 1981). David Rose—a nuclear engineer and professor at the Massachusetts In- stitute of Technology who became an early advocate of fossil fuel alternatives—wrote during this time that "coal and other fossil fuels will in about fifty years bring about the conditions for una- voidable temperature and climate changes." Rose, Energy Pro- spects for the Long Term, 125 Proceedings of the American Phil- osophical Society 269, 271 (1981). Professor Rose and others in this period of history began to suggest that based on their "current understanding of the effect of CO2 on climate and trends in global energy use, a significant CO2 warming in the next century probably cannot be avoided." But the "rate of increases of atmosphere CO2 due to fossil fuel consumption can be significantly reduced" if governments and other actors incentivized the adoption of "energy strategies that are relatively VOL. 311 SUPREME COURT OF KANSAS 325

In re Joint Application of Westar Energy & Kansas Gas and Electric Co.

'CO2-benign.'" Rose et al., Global Energy Futures and CO2-Induced Climate Change: Report Prepared for Division of Policy Research and Analysis, National Science Foundation 6-7, 11-12 (Energy Labor- atory, Massachusetts Institute of Technology 1983). As promised, President Carter signed a package of legislation into law designed to combat the nationwide energy crisis, including the Public Utilities Regulatory Policies Act of 1978, Pub. L. 95-617, 92 Stat. 3117 (PURPA). FERC v. Mississippi, 456 U.S. 742, 745, 102 S. Ct. 2126, 72 L. Ed. 2d 532 (1982). As described by this court, "PURPA was designed to encourage increased conservation of electric energy, increased efficiency in the use of facilities and resources by electric utilities, and equitable retail rates for electric consumers." Kansas City Power & Light Co. v. Kansas Corporation Comm'n, 238 Kan. 842, 854-55, 715 P.2d 19 (1986). PURPA directed the Federal Regulatory Energy Commission (FERC) to consult with state regulatory agencies and promulgate rules "'to encourage cogeneration and small power production.'" FERC, 456 U.S. at 751 (quoting 16 U.S.C. §824a-3[a]). This included an instruction to create a rule that prohibited utilities from "discriminat[ing] against qualifying cogenerators or qualifying small power producers." 16 U.S.C. §824a-3(c)(2) (2018). This cate- gory of small power producers included residential customers producing solar power. See 16 U.S.C. § 796 (17)(A) (2018) (defining a small power production facility as a facility that produces fewer than 80 megawatts of renewable energy); see also 18 C.F.R. §§ 292.101(b)(1); 292.203(a), (d); 292.204 (2019) (defining a qualifying small power production facility as a facility that produces fewer than 80 megawatts of energy and exempting facilities with a net power production capacity of 1 MW or less from filing requirements). As a result, FERC adopted regulations relating to purchases and sales of electricity to and from cogeneration and small power facilities in 1980. The regulations included an antidiscrimination provision providing that "rates for sales . . . [s]hall not discriminate against any qualifying facility in comparison to rates for sales to other customers served by the electric utility." 18 C.F.R. § 292.305(a)(1)(ii) (2019). This history is significant not because it is (or is not) dispositive of the underlying claims about fossil fuels and their relative benefit or harm to society, but because it describes the political, 326 SUPREME COURT OF KANSAS VOL. 311

In re Joint Application of Westar Energy and Kansas Gas and Electric Co. economic, and cultural context within which Kansas law developed. States such as Kansas responded in this historical moment by developing their own conservation programs. See Scott, Teach- ing An Old Dog New Tricks: Adapting Public Utility Commis- sions To Meet Twenty-first Century Climate Challenges, 38 Harv. Envtl. L. Rev. 371, 388 (2014) ("In the 1980s, a number of states began following the federal example and developing their own conservation programs."); see also Kansas City Power & Light Co. v. Kansas Corporation. Comm'n, 234 Kan. 1052, 1054, 676 P.2d 764 (1984) (stating that the Kansas Legislature "recognize[ed] the need for energy conservation and cogeneration" in 1979 after PURPA's enactment). Thus, in 1980, the Kansas Leg- islature enacted K.S.A. 66-117d, L. 1980, ch. 201, § 1:

"No electric or gas utility providing electrical or gas service in this state shall consider the use of any renewable energy source other than nuclear by a customer as a basis for establishing higher rates or charges for any service or commodity sold to such customer nor shall any such utility subject any customer utilizing any renewable energy source other than nuclear to any other prejudice or disadvantage on account of the use of any such renewable energy source."

Contrary to the Utilities' current economic arguments, at least at the time K.S.A. 66-117d was enacted, there was a widely held belief that incentivizing consumer generation of electricity was economically beneficial to the entire electric generation system. The basic idea was that "[p]roperly designed and integrated solar devices" would "reduce consumers' need for electricity during peak demand periods" which would in turn allow "utilities to achieve load management control." Lawrence & Minan, Financ- ing Solar Energy Development Through Public Utilities, 50 Geo. Wash. L. Rev. 371, 378 (1982). The energy crises of the 1970s led to rocketing fixed costs and "adversely affected the economics of public utility operations." To deal with this problem, "many electric companies changed their marketing objectives from promoting greater power consumption to encouraging greater diversifi- cation of consumer demand." By "spreading customer demand more evenly over a given time period" utilities hoped to "use existing plant capacity more efficiently" and avoid the economic losses associated with the "increase[d] generating capacity" sitting VOL. 311 SUPREME COURT OF KANSAS 327

In re Joint Application of Westar Energy & Kansas Gas and Electric Co. idle "during off-peak hours." This kind of load management was believed to be achievable at least in part through customer owned solar power-plants. "These economic considerations explain electric utilities' self-interest in integrating solar energy applications with their services." 50 Geo. Wash L. Rev. at 377, 379. The Utilities in this case appear to have given up on the economic promise once attached to the private generation of electricity from renewable resources. Indeed, the Utilities admitted at oral argument that under their proposed RS-DG rate design, DG customers will pay more for their electricity than other customers and that, considered in isolation, this violates K.S.A. 66-117d. But the Utilities argue K.S.A. 66-117d is invalid and cannot be applied to the RS-DG rate design because it conflicts with a more recent statute—K.S.A. 66-1265(e). And, being the more recent statute, the Utilities argue that K.S.A. 66-1265(e) preempts K.S.A. 66-117d and allows the Utilities to charge more to DG customers than they do to non-DG customers—all for providing the same services and selling the same energy. Under K.S.A. 66-1265(e):

"Each utility shall:

. . . .

"(e) for any customer-generator which began operating its renewable energy resource under an interconnect agreement with the utility on or after July 1, 2014, have the option to propose, within an appropriate rate proceeding, the application of time-of-use rates, minimum bills or other rate structures that would apply to all such customer-generators prospectively."

The Court of Appeals agreed with the Utilities, finding that the two statutes conflicted because K.S.A. 66-1265(e) authorized utilities to charge DG customers higher rates. Westar Energy, 2019 WL 1575480, at *6. Thus, the panel concluded that K.S.A. 66- 1265(e) must control because it is the latest pronouncement from the Legislature and the more specific statute. 2019 WL 1575480, at *6 (quoting State v. Englund, 50 Kan. App. 2d 123, Syl. ¶ 3, 329 P.3d 502 (2014) ("'When there is a conflict between two statutes the latest legislative expression generally controls. But when the conflict is between a general principle of law and a more specific enactment, the more specific statute controls.'"). 328 SUPREME COURT OF KANSAS VOL. 311

In re Joint Application of Westar Energy and Kansas Gas and Electric Co.

We must now determine whether the RS-DG rate design violates Kansas law. K.S.A. 66-118a(b) gives jurisdiction over Com- mission actions to the Kansas Court of Appeals, and we have unlimited jurisdiction to review decisions of that intermediate court. K.S.A. 66-118a(b) ("The court of appeals shall have exclusive jurisdiction to review any agency action of the state corporation commission arising from a rate hearing . . . ."); K.S.A. 60-2101 ("The supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court or court of appeals . . . ."); see also GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981, 453 P.3d 304 (2019) ("This court exercises concurrent jurisdiction with the Court of Appeals over all appeals over which the Court of Appeals has jurisdiction . . . ."). The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs our review of this issue. K.S.A. 66-118c. Under the KJRA, an appellate court may grant relief when the Commission has erroneously interpreted or applied the law. K.S.A. 77- 621(c)(4). Our review of the Commission's actions requires us to interpret both K.S.A. 66-117d and K.S.A. 66-1265(e). Interpreta- tion of a statute is a question of law over which we exercise ple- nary review. Midwest Crane & Rigging, LLC v. Kansas Corpora- tion Comm'n, 306 Kan. 845, 848, 397 P.3d 1205 (2017). In short, we disagree with the lower court's holding that the statutes conflict. When interpreting and comparing K.S.A. 66- 117d and K.S.A. 66-1265(e), we abide by the most fundamental rule of statutory interpretation—that the intent of the Legislature governs if that intent can be ascertained. Harsay v. University of Kansas, 308 Kan. 1371, 1381, 430 P.3d 30 (2018). In ascertaining this intent, we begin with the plain language of the statute, giving common words their ordinary meaning. Nauheim v. City of To- peka, 309 Kan. 145, 149, 432 P.3d 647 (2019). We will only review legislative history or use canons of construction if the statute's language or text is unclear or ambiguous. 309 Kan. at 150.

Under this plain language analysis, we can discern no conflict between the statutes. On the one hand, K.S.A. 66-117d is an antidiscrimination provision that prohibits utilities from charging DG VOL. 311 SUPREME COURT OF KANSAS 329

In re Joint Application of Westar Energy & Kansas Gas and Electric Co. customers a higher price than non-DG customers for the same service. K.S.A. 66-117d focuses on the price of the goods and services sold by the Utilities. On the other hand, K.S.A. 66-1265(e) addresses rate structure rather than price. K.S.A. 66-1265(e) allows utilities to propose separate rate structures that would apply to all DG customers that began generating their own electricity after 2014. The Utilities argue that K.S.A. 66-1265(e)'s language permits utilities to charge DG customers a higher price than they charge to non-DG customers, reasoning that a change in rate structure necessarily impacts price. And this means the two statutes conflict, evincing a legislative desire to repeal K.S.A. 66-117d. But while it is clearly true that a change in rate structure could impact the ultimate price charged by Utilities for providing their goods and services, we can imagine a rate structure change that would not result in price discrimination against DG customers. The two statutes can coexist. To adopt the position advocated by the Utilities, however, would require us to read something into K.S.A. 66-1265(e) not found in its text—something we routinely refuse to do. See, e.g., State v. Ayers, 309 Kan. 162, 164, 432 P.3d 663 (2019) ("'[W]hen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.'"). By glossing over this price versus structure distinction, both the Utilities and the Court of Appeals effectively write K.S.A. 66-117d out of the books. This runs contrary to a bedrock principle of statutory interpretation that "'[r]epeal by implication is not favored.'" In re City of Wichita, 274 Kan. 915, 929, 59 P.3d 336 (2002) (quoting State v. Ro- derick, 259 Kan. 107, 111, 911 P.2d 159 [1996]). We have long re- sisted repealing statutes without either express language to that effect or "a later enactment [that] is so repugnant to the provisions of the first act that both cannot be given force and effect." In re City of Wichita, 274 Kan. at 929; see also State v. Holcomb, 93 Kan. 424, 425, 144 P. 266 (1914) ("where the legislature intends to repeal a statute it is done in express terms, and so it is said that 'the presumption is always against the intention to repeal where express terms are not used'"). Instead, "[s]tatutes should be read as consistent with one another" so 330 SUPREME COURT OF KANSAS VOL. 311

In re Joint Application of Westar Energy and Kansas Gas and Electric Co. that both statutes can be given effect. Stanley v. Sullivan, 300 Kan. 1015, 1021, 336 P.3d 870 (2014). By its plain text, K.S.A. 66-117d clearly prohibits the Utilities from price discrimination against DG customers, something the Util- ities admit they are trying to do. By its plain text, K.S.A. 66-1265(e) authorizes the Utilities to apply alternative rate structures to DG customers. Examples of such rate structures given in the statute are "time-of-use rates" or "minimum bills." But there is nothing in K.S.A. 66-1265(e) suggesting that such a rate structure does not also have to comply with the price nondiscrimination provisions of K.S.A. 66- 117d. In other words, while utilities may try to alter the rate structure applicable to DG customers, they must do so within the larger context of a nondiscriminatory price regime. We find the Utilities' arguments that this reading would prohibit utilities from recovering the cost of serving DG customers unpersuasive. Here, the proposed rate does not reflect an added service justify- ing a higher cost. The Utilities want to impose a mandatory three-part rate design for DG customers as opposed to the two-part rate design applied to non-DG customers. Both rate designs include a basic service fee and a kilowatt hour energy charge. The three-part rate design, however, adds an additional "demand charge" for DG customers. This demand charge includes a flat fee of $3 in the winter and $9 in the summer. There is no question that the RS-DG rate at issue here is not built on a time-of-use rate or a minimum bill. It is simply price discrimination. And this price discrimination undermines the policy preferences of our Legislature—as expressed in K.S.A. 66-117d— which has codified the goal of incentivizing renewable energy production by private parties as we have already described. We can think of several ways the Utilities could attempt to reduce or eliminate their economic "free rider" problem without creating a regime of price discrimination. For example, the Utilities could simply restructure their rates so that their fixed costs are fully recovered by the flat fee charged to each customer hooked to the grid. Al- ternatively, the Utilities could impose a nondiscriminatory time-of- use rate, or a sliding scale rate that decreased the per-unit price as the customer purchased a higher volume of energy—thus rewarding high volume purchasers. Of course it is beyond the scope of this opinion VOL. 311 SUPREME COURT OF KANSAS 331

In re Joint Application of Westar Energy & Kansas Gas and Electric Co. to predict whether these alternative price schemes would clear either the political or legal hurdles they might face. These examples simply illustrate that price discrimination is not the only way to achieve an equitable market for the sale of electricity within statutory parameters. Our decision today does not impose any restrictions on the Util- ities' and Commission's economic judgments concerning how best to structure the generation and sale of electricity other than the restriction imposed by the Kansas Legislature in K.S.A. 66-117d. The proposed RS-DG rate design violates K.S.A. 66-117d because it uses a customer's DG status as a basis for charging more for the same goods and services than the Utilities charge to non-DG customers. And the requirements of K.S.A. 66-117d remain valid and enforceable against the Utilities. Therefore, the RS-DG rate design is unlawful and the Commission erred by approving a discriminatory rate in violation of K.S.A. 66-117d. The judgment of the Court of Appeals is reversed. The judgment of the Kansas Corporation Commission is reversed, and this matter is remanded to the Commission for further proceedings consistent with this opinion.

BEIER, J., not participating. 1 HENRY W. GREEN, JR., J., assigned. 2 STEVE LEBEN, J., assigned. NEIL B. FOTH, District Judge, assigned.3

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 120,436 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 120,436 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

3REPORTER'S NOTE: District Judge Foth was appointed to hear case No. 120,436 vice Justice Beier under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

332 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman

Nos. 118,673 118,674 118,675

STATE OF KANSAS, Appellee, v. KEVIN COIL COLEMAN, Appellant.

_460 P.3d 828__

SYLLABUS BY THE COURT

1. STATUTES—Interpretation—Appellate Review. Interpretation of a statute is a question of law over which appellate courts have unlimited review.

2. SAME—Operates Prospectively—Exception. Generally, a statute operates prospectively unless there is clear language indicating the Legislature intended it to operate retrospectively.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 14, 2018. Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed April 10, 2020. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Christina M. Kerls, of the same office, was on the brief for appellant.

Anna M. Jumpponen, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

GREEN, J.: The State moved to revoke Kevin Coil Coleman's probation in January 2017 for failure to report. The Kansas Leg- islature enacted K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, which permitted a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as the result of a dispositional departure. See L. 2017, ch. 92 § 8. Coleman was arrested and his probation, which had been granted as a dispositional departure, was later revoked at a hearing on November 1, 2017. A majority of the Court of Appeals determined that the trial court could not revoke Cole- man's probation without first imposing intermediate sanctions and remanded to the trial court. Because we hold that K.S.A. 2017 Supp. 22-3716(c)(9)(B) does not apply to probationers such as VOL. 311 SUPREME COURT OF KANSAS 333

State v. Coleman

Coleman whose offenses were committed before that statute's effective date, we remand for a new probation violation hearing with directions.

FACTS

On May 23, 2013, police arrested Coleman for unlawful possession of a controlled substance. Coleman pleaded guilty to unlawful possession of a controlled substance in Saline County case 13CR518 on October 31, 2013. Although Coleman's criminal history score of B would have meant presumptive imprisonment, the trial court granted a downward dispositional departure to 12 months' probation with an underlying 34-month prison term. On June 21, 2014, police arrested Coleman for unlawful possession of a controlled substance. And on July 7, 2015, Coleman pleaded no contest to the new charge of unlawful possession of a controlled substance in Saline County case 14CR674. For the 14CR674 case, the trial court sentenced Coleman to a 34- month prison term. Coleman also pleaded no contest to aggravated failure to appear in Saline County case 15CR142. For this case, the trial court sentenced Coleman to a 10-month prison term. The trial court granted Coleman's request for a dispositional departure to 12 months' probation in both the 14CR674 and 15CR142 cases. In the 2013 case, the trial court extended Coleman's probation for 12 months. At a later revocation hearing, the trial court ordered a jail sanction of 45 days under K.S.A. 2014 Supp. 22-3716(c)(11), after which Coleman would be reinstated on probation in all three cases for 12 months. Coleman was released from his jail sanction on October 30, 2016, and did not report to his supervising probation officer. He instead called his probation officer and scheduled a meeting for November 17, 2016, but he failed to attend that meeting. His probation officer had no other contact with Coleman. On January 19, 2017, the State moved to revoke Coleman's probation in all three cases for failure to report. A probation revocation hearing was held in all three cases on November 1, 2017. At the hearing, Coleman stipulated that he had violated his probation by failing to report to his probation officer. The State requested that Coleman's probation be revoked and that he be ordered to serve his underlying sentences. The State maintained that 334 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman the trial court did not need to impose intermediate sanctions because Coleman's probation was granted as the result of dispositional departures. Coleman argued that the trial court did not have the authority to bypass the intermediate sanctions because he had committed all of his original crimes of conviction before the enactment of the July 1, 2017 amendment, which provided the dispositional departure exception to the graduated sanction scheme. Coleman asked the trial court to impose intermediate sanctions because "the change of law which allowed for dispositional departures to be immediately revoked upon first appearance in front of the Court on a probation violation" did not apply retrospectively. The trial court ruled that because Coleman's probation had been granted as the result of dispositional departures, it had the authority to revoke Coleman's probation and impose the underlying sentences without first imposing intermediate sanctions. The trial court ran the 2013 and 2014 case sentences consecutive, but ran the sentence from Coleman's 2015 case concurrent with the 2013 and 2014 sentences, resulting in a total sentence of 68 months. Coleman timely appealed. A majority of the Court of Appeals reversed and remanded, holding that the trial court erred in applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) retrospectively. State v. Coleman, No. 118,673, 2018 WL 6580094 (Kan. App. 2018) (unpublished opinion). This court granted the State's timely petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).

ANALYSIS

Did the Court of Appeals err by holding K.S.A. 2017 Supp. 22- 3716(c)(9)(B) does not operate retrospectively?

Standard of Review

Where the issue is the propriety of the sanction imposed by the trial court for a probationer's violation of the terms and conditions of probation, the standard of review is an abuse of discretion. State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095 (2016). Never- theless, to the extent Coleman's appeal involves interpreting K.S.A. 2017 Supp. 22-3716, interpreting a sentencing statute is a VOL. 311 SUPREME COURT OF KANSAS 335

State v. Coleman question of law over which this court has unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Discussion

In its petition, the State argues that the Legislature intended K.S.A. 2017 Supp. 22-3716(c)(9)(B) to operate retroactively. Coleman argues that subsection (c)(9)(B) does not apply to him because the Legisla- ture did not intend for (c)(9)(B) to apply to probationers whose crimes of conviction were committed before the enactment of this subsection. In the alternative, Coleman argues that (c)(9)(B) should not apply to him because retroactive application of this subsection to probationers whose offenses were committed before (c)(9)(B)'s effective date would violate the Ex Post Facto Clause of the United States Constitution. Subsection (c)(9)(B) was enacted as a part of K.S.A. 2017 Supp. 22-3716, which states:

"(c)(1) Except as otherwise provided, if the original crime of conviction was a felony, other than a felony specified in K.S.A. 2017 Supp. 21-6804(i), and amendments thereto, and a violation is established, the court may impose the following sanctions: (A) Continuation or modification of the release conditions of the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction; (B) continuation or modification of the release conditions of the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and an intermediate sanction of confinement in a county jail to be imposed as a two-day or three-day consecutive period. The total of all such sanctions imposed pursuant to the subparagraph and subsections (b)(4)(A) and (b)(4)(B) shall not exceed 18 total days during the term of supervision; (C) if the violator already had at least one intermediate sanction imposed pursuant to subsection (b)(4)(A), (b)(4)(B) or (c)(1)(B) related to the crime for which the original supervision was imposed, continuation or modification of the release conditions of the probation, assignment to community correctional services program, suspension of sentence or nonprison sanction and remanding the defendant to the custody of the secretary of corrections for a period of 120 days, subject to a reduction of up to 60 days in the discretion of the secretary. This sanction shall not be imposed more than once during the term of supervision. The sanction imposed pursuant to this subparagraph shall begin upon pronouncement by the court and shall not be served by prior confinement credit, except as provided in subsection (c)(7); (D) if the violator already had a sanction imposed pursuant to subsection (b)(4)(A), (b)(4)(B), (c)(1)(B) or (c)(1)(C) related to the crime for which the 336 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman original supervision was imposed, continuation or modification of the release conditions of the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and remanding the defendant to the custody of the secretary of corrections for a period of 180 days, subject to a reduction of up to 90 days in the discretion of the secretary. This sanction shall not be imposed more than once during the term of supervision. The sanction imposed pursuant to this subparagraph shall begin upon pronouncement by the court and shall not be served by prior confinement credit, except as provided in subsection (c)(7); or (E) if the violator already had a sanction imposed pursuant to subsection (c)(1)(C) or (c)(1)(D) related to the crime for which the original supervision was imposed, revocation of the probation, assignment to a community corrections services program, suspension of sentence or nonprison sanction and requiring such violator to serve the sentence imposed, or any lesser sentence and, if imposition of sentence was suspended, imposition of any sentence which might originally have been imposed. "(2) Except as otherwise provided in subsections (c)(3), (c)(8) and (c)(9), no offender for whom a violation of conditions of release or assignment or a nonprison sanction has been established as provided in this section shall be required to serve any time for the sentence imposed or which might originally have been imposed in a state facility in the custody of the secretary of corrections for such violation, unless such person has already had at least one prior assignment to a community correctional services program related to the crime for which the original sentence was imposed. . . . . "(9) The court may revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction of an offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) if: (A) The court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction; or (B) the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction was originally granted as the result of a dispositional departure granted by the sentencing court pursuant to K.S.A. 2017 Supp. 21-6815, and amendments thereto. . . . . "(12) The violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced."

See L. 2017, ch. 92, § 8.

The Legislature added (c)(12) in 2014, indicating the violation sanctions in subsection (c) would apply to violations occurring on or after July 1, 2013. See L. 2014, ch. 102, § 8; see also State v. VOL. 311 SUPREME COURT OF KANSAS 337

State v. Coleman

Battle, 52 Kan. App. 2d 149, 151, 363 P.3d 424 (2015). Then, K.S.A. 2017 Supp. 22-3716(c)(9)(B) became effective on July 1, 2017, allowing a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was originally granted as a dispositional departure. Subsection (c)(9)(B) does not contain any retroactivity language. "Generally, a statute operates prospectively unless there is clear language indicating the legislature intended it to operate retrospectively." State v. Corbin, 305 Kan. 619, 625, 386 P.3d 513 (2016); Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 460, 264 P.3d 102 (2011). When it was adopted, the language of (c)(12) operated as an effective date provision for the graduated sanctions statutory amendment enacted in 2013. See State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014). Subsection (c)(12) did not express an intent for subsection (c)(9)(B) to operate retrospectively because (c)(9)(B) did not then exist. Subsection (c)(9)(B) was not adopted until July 1, 2017. Thus, (c)(12) is an effective date provision which cannot function as "clear language indicating the legislature intended" (c)(9)(B) to operate retrospectively. Corbin, 305 Kan. at 625. Thus, we hold that the K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after July 1, 2017. Coleman's offenses or crimes of conviction were all committed before July 1, 2017. As a result, subsection K.S.A. 2017 Supp. 22-3716(c)(9)(B) does not apply to him. We affirm the Court of Appeals decision and remand Cole- man's cases involving offenses or crimes of conviction occurring on or after July 1, 2013 and before July 1, 2017, to the trial court for a new probation violation hearing with directions to apply the law in effect when Coleman committed his offenses or crimes of convictions. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions.

338 SUPREME COURT OF KANSAS VOL. 311

State v. Coleman

1 HENRY W. GREEN, JR., J., assigned. STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 118,673, 118,674, and 118,675 vice Justice Johnson under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20- 3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

²REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 118,673, 118,674, and 118,675 vice Chief Justice Nuss under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 339

Kelly v. Legislative Coordinating Council

No. 122,765

GOVERNOR LAURA KELLY, in Her Official Capacity, Petitioner, v. LEGISLATIVE COORDINATING COUNCIL, KANSAS HOUSE OF REPRESENTATIVES, and KANSAS SENATE, Respondents.

___

SYLLABUS BY THE COURT

1. QUO WARRANTO—Kansas House and Senate not Named Parties—Dis- missal from Case. The Kansas House of Representatives and Kansas Senate are dismissed from this action brought by the Governor to determine the authority of the Legislative Coordinating Council to act under House Con- current Resolution 5025.

2. GOVERNOR—Executive Order Cannot Be Revoked by House Resolution. House Concurrent Resolution 5025 does not authorize the Legislative Co- ordinating Council to revoke Executive Order 20-18. Its plain text requires, as a condition precedent to exercise any Legislative Coordinating Council power, action by the State Finance Council to permit extension of the time of the Governor's state of disaster emergency declaration.

3. LEGISLATURE—Statute Authorizing Creation of Legislative Coordinat- ing Council—Specific Statute for Revocation of Executive Orders During Emergency. K.S.A. 46-1202 is a general statute creating the Legislative Co- ordinating Council and, in this instance, must give way to the more specific statute—K.S.A. 2019 Supp. 48-925—which governs the revocation of gubernatorial executive orders issued during a declaration of state of disaster emergency.

Original action in quo warranto. Opinion filed April 11, 2020. Quo warranto granted in part.

Clay Britton, chief counsel, Office of the Governor, argued the cause, and Lumen N. Mulligan, of Lawrence, and Pedro L. Irigonegaray, of Irigonegaray, Turney, & Revenaugh, L.L.P., of Topeka, were with him on the brief for petitioner Governor Laura Kelly.

Bradley J. Schlozman, of Hinkle Law Firm LLC, of Wichita, argued the cause and was on the brief for respondents Legislative Coordinating Council and Kansas House of Representatives.

Edward D. Greim, of Graves Garrett LLC, of Kansas City, Missouri, argued the cause and was on the brief for respondent Kansas Senate.

PER CURIAM: This is an expedited original action in quo warranto brought by Governor Laura Kelly against the Legislative 340 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council

Coordinating Council, the Kansas House of Representatives, and the Kansas Senate. It broadly concerns statutory procedures for issuance of gubernatorial proclamations declaring a state disaster emergency and the legislative oversight authorized for such proclamations and their attendant executive orders under the Kansas Emergency Management Act (KEMA), K.S.A. 48-904 et seq. This controversy arises in the wake of an emergency proclamation issued by Governor Kelly on March 12, 2020, in response to the global public health crisis related to the novel coronavirus (COVID-19) and her follow-up executive orders. The LCC purported to revoke one executive order. We are asked to determine whether it acted within its lawful authority. We hold that it did not. As ultimately acknowledged by all counsel during oral arguments today, even if we accept House Concurrent Resolution 5025 as an otherwise valid exercise of legislative authority, its plain text did not authorize the LCC to revoke Executive Order 20-18. That acknowledgment ends this controversy. We need not and do not decide the merits of other arguments advanced or attempted to be advanced by the parties—including whether a concurrent resolution passed by the Legislature can delegate its oversight authority under KEMA to the LCC; whether the statutes creating and enabling the LCC affect the KEMA analytical framework; whether due process is violated by the type of notice about the Governor's executive orders; or whether Execu- tive Order 20-18 was a legally valid or constitutional exercise of the Governor's authority, despite its limitation on religious gatherings. Also, before reciting the factual and procedural background necessary to our decision and discussing the merits of the dispositive legal issue, we note sua sponte that the House and Senate may not be properly named as parties to this quo warranto action. For the same reasons expressed in State ex rel. Schmidt v. Kelly, 309 Kan. 887, 891-93, 441 P.3d 67 (2019), we dismiss them from this case.

VOL. 311 SUPREME COURT OF KANSAS 341

Kelly v. Legislative Coordinating Council

FACTUAL AND PROCEDURAL BACKGROUND

K.S.A. 48-924(b) grants the Governor a statutory power to declare a state of disaster emergency. The pertinent part of subsection (b) provides:

"(1) The governor, upon finding that a disaster has occurred or that occurrence or the threat thereof is imminent, shall issue a proclamation declaring a state of disaster emergency. . . . . "(3) The state of disaster emergency so declared shall continue until the governor finds that the threat or danger of disaster has passed, or the disaster has been dealt with to the extent that emergency conditions no longer exist. Upon making such findings the governor shall terminate the state of disaster emergency by proclamation, but except as provided in paragraph (4), no state of disaster emergency may continue for longer than 15 days unless ratified by concurrent resolution of the legislature, with the single exception that upon specific application by the governor to the state finance council and an affirmative vote of a majority of the legislative members thereof, a state of disaster emergency may be extended once for a specified period not to exceed 30 days beyond such 15- day period. "(4) If the state of disaster emergency is proclaimed pursuant to paragraph (2), the governor shall terminate the state of disaster emergency by proclamation within 15 days, unless ratified by concurrent resolution of the legislature, except that when the legislature is not in session and upon specific application by the governor to the state finance council and an affirmative vote of a majority of the legislative members thereof, a state of disaster emergency may be extended for a specified period not to exceed 30 days. The state finance council may authorize additional extensions of the state of disaster emergency by a unanimous vote of the legislative members thereof for specified periods not to exceed 30 days each. Such state of disaster emergency shall be terminated on the 15th day of the next regular legislative session following the initial date of the state of disaster emergency unless ratified by concurrent resolution of the legislature. "(5) At any time, the legislature by concurrent resolution may require the governor to terminate a state of disaster emergency. Upon such action by the legislature, the governor shall issue a proclamation terminating the state of disaster emergency." (Emphasis added.)

Under subsection (b)(1), the Governor proclaimed a state of disaster emergency on March 12. Under subsection (b)(3), the proclamation could not last longer than 15 days unless ratified by a concurrent resolution of the Legislature. Additional exceptions to that ratification timeline are not relevant to our discussion. 342 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council

Once the proclamation is declared under K.S.A. 48-924, the Governor obtains powers set out in K.S.A. 2019 Supp. 48-925. That statute provides:

"(a) During any state of disaster emergency declared under K.S.A. 48-924, and amendments thereto, the governor shall be commander-in-chief of the orga- nized and unorganized militia and of all other forces available for emergency duty. To the greatest extent practicable, the governor shall delegate or assign command authority by prior arrangement, embodied in appropriate executive orders or in rules and regulations of the adjutant general, but nothing herein shall restrict the authority of the governor to do so by orders issued at the time of a disaster. "(b) Under the provisions of this act and for the implementation thereof, the governor may issue orders and proclamations which shall have the force and effect of law during the period of a state of disaster emergency declared under subsection (b) of K.S.A. 48-924, and amendments thereto, and which orders and proclamations shall be null and void thereafter unless ratified by concurrent resolution of the legislature. Such orders and proclamations may be revoked at any time by concurrent resolution of the legislature. "(c) During a state of disaster emergency declared under K.S.A. 48-924, and amendments thereto, and in addition to any other powers conferred upon the governor by law, the governor may: . . . . (7) control ingress and egress of persons and animals to and from a disaster area, the movement of persons and animals within the area and the occupancy by persons and animals of premises therein; [and] . . . . (11) perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. "(d) The governor shall exercise the powers conferred by subsection (c) by issuance of orders under subsection (b). The adjutant general, subject to the direction of the governor, shall administer such orders." (Emphasis added.) K.S.A. 2019 Supp. 48-925.

Within the 15-day statutory window, the Legislature adopted House Concurrent Resolution (HCR) 5025 extending the Gover- nor's declaration to May 1, 2020. The resolution reads:

"WHEREAS, On March 12, 2020, Governor Laura Kelly issued a State of Disaster Emergency declaration in response to confirmed cases of novel coronavirus (COVID-19) in the state of Kansas and considers that a public health emergency exists within the state of Kansas. The United States Centers for Disease Control and Prevention (CDC) identifies the potential public health threat posed by COVID-19 both globally and in the United States as 'high,' and the United VOL. 311 SUPREME COURT OF KANSAS 343

Kelly v. Legislative Coordinating Council

States Department of Health & Human Services declared a public health emergency for COVID-19 beginning January 27, 2020. The World Health Organiza- tion (WHO) declared a global pandemic on March 11, 2020: Now, therefore, "Be it resolved by the House of Representatives of the State of Kansas, the Senate concurring therein: That the State of Disaster Emer- gency declaration issued on March 12, 2020, for the entire 105 counties of Kan- sas in accordance with K.S.A. 48-924 is hereby ratified and continued in force and effect on and after March 12, 2020, through May 1, 2020, subject to additional extensions by concurrent resolution of the Legislature or as further provided in this concurrent resolution. If the Legislature is not in session: "(1) As described in K.S.A. 48-924(b)(3), upon specific application by the Governor to the State Finance Council, the State Finance Council may authorize once an extension of such state of disaster emergency by affirmative vote of a majority of the legislative members thereof for a specified period not to exceed 30 days; and "(2) following such State Finance Council action, the Legislative Coordi- nating Council, representing the Legislature when the Legislature is not in session pursuant to K.S.A. 46-1202: (A) Is authorized to ratify a declaration, terminate a state of disaster emergency, revoke an order or proclamation or assume any other power granted to the legislature pursuant to K.S.A. 48-924 or K.S.A. 2019 Supp. 48-925; (B) may authorize additional extensions of such state of disaster emergency by a majority vote of five members thereof for specified periods not to exceed 30 days each; (C) shall meet not less than every 30 days to: (i) Review the state of disaster emergency; (ii) consider any orders or proclamations issued since the last Legislative Coordinating Council meeting; and (iii) consider whether such orders or proclamations, if any, are an exercise of any power listed in K.S.A. 2019 Supp. 48-925(c)(2), (c)(4), (c)(7), (c)(8) or (c)(11); and (D) shall have the authority to review and revoke all orders and proclamations issued by the governor pursuant to K.S.A. 2019 Supp. 48-925(b). The chairperson of the Legislative Coordinating Council, in consultation with the attorney general, adjutant general and any other parties the chairperson deems necessary, shall determine if an order or proclamation that is an exercise of a power listed in K.S.A. 2019 Supp. 48-925(c)(2), (c)(4), (c)(7), (c)(8) or (c)(11) has been issued. If the chairperson determines that the order or proclamation is an exercise of such power, the Legislative Coordinating Council shall meet to consider such order or proclamation within three calendar days. At such meeting, the Legisla- tive Coordinating Council may revoke such order or proclamation; and "Be it further resolved: That, for the purposes of this ratification, the Gov- ernor shall not have the power or authority to temporarily or permanently seize, or authorize seizure of, any ammunition or to suspend or limit the sale, dispens- ing or transportation of firearms or ammunition pursuant to K.S.A. 2019 Supp. 48-925(c)(8) or any other executive authority." 344 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council

On April 7, Governor Kelly used her K.S.A. 2019 Supp. 48- 925(b) powers to issue Executive Order 20-18, relating to her March 12 emergency proclamation. Among other things, it temporarily prohibited, subject to several exemptions, "mass gatherings," defined as "any planned or spontaneous, public or private event[s] or convening[s] that will bring together or [are] likely to bring together more than 10 people in a confined or enclosed space at the same time." Executive Order 20-18 rescinded and replaced an earlier, substantially similar executive order. But Executive Or- der 20-18 differed in that it removed "[r]eligious gatherings" and "[f]uneral or memorial services or ceremonies" from the list of "activities or facilities" exempt from the temporary prohibition of mass gatherings. On April 8, the LCC convened pursuant to HCR 5025. By 5- to-2 vote, it revoked Executive Order 20-18. The next day, Governor Kelly filed this original action in quo warranto challenging the asserted revocation of her executive order. We agreed to expedite these proceedings due to the nature of the public health emergency all agree is present. We heard oral argument from counsel to the parties this morning.

DISCUSSION

Article III, section 3 of the Kansas Constitution grants the Su- preme Court original jurisdiction over actions in quo warranto. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984). Relief in quo warranto is dis- cretionary. We may entertain the current proceeding if we determine the issue is of sufficient public concern. 236 Kan. at 53. Un- der the circumstances our state faces, we easily do. An action in quo warranto demands that an individual or corporation show by what authority it has engaged in a challenged action. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 656, 367 P.3d 282 (2016). K.S.A. 60-1202(1) provides an action in quo warranto may be brought in the Supreme Court "[w]hen any person shall usurp, intrude into or unlawfully hold or exercise any public office, or shall claim any franchise within this state, or any office in any corporation created by authority of this state." And K.S.A. 60-1202(5) allows such an action "[f]or any other cause VOL. 311 SUPREME COURT OF KANSAS 345

Kelly v. Legislative Coordinating Council for which a remedy might have been heretofore obtained by writ of quo warranto at common law." In this controversy, the Gover- nor complains about the LCC's intrusion into the legislative scheme for overseeing her emergency authority in the face of the present public health crisis. We are convinced that a quo warranto action is an appropriate vehicle for questioning the LCC's authority to revoke Executive Order 20-18 under HCR 5025. See City of Wichita, 303 Kan. at 656.

The House and the Senate's Capacity to Be Sued

Neither the House nor the Senate argues it should be dismissed because it lacks capacity to be sued. Nevertheless, we recently observed that the legal question of whether the Legislature, or one house of the Legislature, can be sued remains unsettled. In Kelly, 309 Kan. at 891, the Kansas Senate was a respondent in an action brought by the State on relation of the attorney general. The Senate did not raise a capacity issue in that case, but the court dismissed it as a party, expressing hesitancy "'to establish as precedent at this time the validity of an action such as this by the attorney general on behalf of the state directly against the legislature.'" 309 Kan. at 892 (quoting Kansas House of Representatives, 236 Kan. at 58). As with Kelly and Kansas House of Representatives, we again choose to dismiss these legislative bodies as parties to this action. Their presence is unnecessary to resolve the merits related to the LCC's authority, and we remain hesitant to establish any precedent. Our caselaw reflects the LCC has been a party to litigation previously in this court, so there is no new precedent in that regard. See, e.g., Legislative Coordinating Council v. Stanley, 264 Kan. 690, 957 P.2d 379 (1998).

The Governor's Standing to Sue

Broadly, standing exists when a party has suffered a cogniza- ble injury and there is a causal relation between the injury and the conduct. Board of Johnson County Comm'rs v. Jordan, 303 Kan. 844, 854, 370 P.3d 1170 (2016) (county commissioners have standing in mandamus action against Kansas Department of Rev- enue). The Supreme Court has original jurisdiction in proceedings 346 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council in quo warranto, mandamus, and habeas corpus. Kan. Const. art. 3, § 3. In cases brought under the court's original jurisdiction, the petitioner has standing when he or she demonstrates a need to secure speedy adjudication of questions of law for guidance of state officials. Ambrosier v. Brownback, 304 Kan. 907, 910, 375 P.3d 1007 (2016). Further, K.S.A. 60-1203 governs standing to bring a quo warranto action as follows:

"Where the action is brought by a person claiming an interest . . . adverse to a resolution . . . which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney."

We have no trouble ruling that the Governor has standing to challenge the LCC's attempt to revoke her executive order. She argues that both the LCC's exercise of power and the House Con- current Resolution under which the LCC claims authority to act are contrary to K.S.A. 2019 Supp. 48-925 and unconstitutional under article II, sections 14 and 20 of the Kansas Constitution. Her argument squarely falls within K.S.A. 60-1202(1). She asserts an interest in the effectiveness of her disaster emergency powers that is adverse to the LCC's claimed authority to nullify her actions.

Authority to Revoke Executive Order 20-18

HCR 5025 answers the only question that demands an answer today. The Respondents claim that HCR 5025 allows the LCC to represent the Legislature when the Legislature is not in session. But they fail to consider its plain language, which establishes conditions precedent. First, it provides for the Governor to apply to the State Finance Council for authorization for a one-time extension of a state of disaster emergency. That language in section 1 of the resolution parallels K.S.A. 48-924(b)(3). The resolution then states:

"(2) following such State Finance Council action, the Legislative Coordi- nating Council, representing the Legislature when the Legislature is not in session pursuant to K.S.A. 46-1202: VOL. 311 SUPREME COURT OF KANSAS 347

Kelly v. Legislative Coordinating Council

(A) Is authorized to ratify a declaration, terminate a state of disaster emergency, revoke an order or proclamation or assume any other power granted to the legislature pursuant to K.S.A. 48-924 or K.S.A. 2019 Supp. 48-925; . . . (D) shall have the authority to review and revoke all orders and proclamations issued by the governor pursuant to K.S.A. 2019 Supp. 48-925(b)." (Empha- sis added.)

Nothing in the limited record before us nor any statement made at oral argument indicates the Governor has asked the State Finance Council for an extension of the state of disaster emergency. Nor do the record or counsel indicate the State Finance Council has acted upon such a request. During oral argument, Re- spondents' counsel conceded these conditions had not occurred. The step involving the State Finance Council must occur before the LCC's now-challenged authority is triggered under HCR 5025(2). Subsection (2) begins with the words "following such State Finance Council action . . . ." Because the State Finance Council has not taken action, this circumstance does not exist and HCR 5025 does not grant the LCC the authority to revoke Execu- tive Order 20-18. See Stanley, 264 Kan. at 706 (holding that the LCC "is an administrative agency created by statute. Its power and authority are defined by law" and "any exercise of authority claimed by the agency must come from within the statutes"); Leg- islative Coordinating Council v. Frahm, 262 Kan. 144, 149-50, 936 P.2d 267 (1997) (same). Respondents also have argued that the Governor acquiesced and accepted this language as HCR 5025 was negotiated and that she did so as she encouraged the Legislature to adjourn. Even if we accept those factual assertions as true, principles of acquiescence do not somehow imbue the LCC with legal authority. We— and the LCC—are bound by the plain language of the resolutions and bills adopted by the Legislature. Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019). Courts avoid adding, deleting, or substituting words in statutes. State v. Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012). Here, the plain language requires certain conditions—the State Finance Council must have acted upon the Governor's request for an extension of the emergency declaration—before the 348 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council

LCC can act on behalf of the Legislature. And no equitable principle can be used to alter that language.

More Specific KEMA Provisions Control over General LCC Stat- ute

In a final effort to avoid the flaws we have identified in HCR 5025 and preserve its authority to act in this matter, the LCC suggests that it possesses the statutory authority to revoke Executive Order 20-18 wholly independent of HCR 5025. The LCC points us to its enabling statute, which grants it the "power to represent the legislature when the legislature is not in session." K.S.A. 46- 1202. But K.S.A. 46-1202 is a general statute creating the LCC and in this instance must give way to the more specific statute— K.S.A. 2019 Supp. 48-925—which governs the revocation of gubernatorial executive orders issued during a state of disaster emergency declaration. Merryfield v. Sullivan, 301 Kan. 397, 398, 343 P.3d 515 (2015) ("It is a general rule of statutory interpretation that, when both a general statute and a specific statute govern the same topic, the specific statute controls."). We hold that if the LCC could possess the authority to revoke such an order—a question we expressly have declined to decide—such power would have to be consonant with the Legislature's action under KEMA, the specific, controlling statutory scheme.

CONCLUSION

The Court has considered and grants in part the Governor's Petition in Quo Warranto. The LCC's purported revocation of Ex- ecutive Order 20-18 on April 8 was a nullity, because the LCC lacked authority do so under HCR 5025's terms. Because this resolves the present dispute, we do not reach broader questions concerning the asserted conflicts between HCR 5025 and K.S.A. 48- 924 and 48-925.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 122,765, under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. VOL. 311 SUPREME COURT OF KANSAS 349

Kelly v. Legislative Coordinating Council

* * *

BILES, J., concurring: I agree with the outcome and rationale. I write separately to express my doubts about HCR 5025's ability to confer oversight powers on the LCC when the plain language of state law says otherwise. At its core, the dispute the parties ask us to resolve turns on a more substantive question: Even if all preconditions set out in the concurrent resolution were met, was the LCC lawfully empowered to disturb Executive Order 20- 18? Plainly, the Kansas Emergency Management Act does not contemplate revision by concurrent resolution. The LCC does not make even a colorable claim that its revocation of the Governor's emergency order was a "concurrent resolution of the legislature" as would be required under the statute. See Rules of the House, Rule 2707 (providing generally that majority of House members necessary to adopt House concurrent resolution). Indeed, the LCC carefully characterizes what it did as "exercis[ing] the power the [L]egislature reserved for itself to quickly review and, if necessary, check the [G]overnor's use of legislatively delegated authority." As the majority notes, the LCC claims its authority to revoke the Governor's executive order through the awkwardly drafted terms of HCR 5025. Slip op. 11-12. But it is axiomatic that a legislative concurrent resolution cannot amend a statute. So how is the LCC's position even viable? Legislation becomes law when it is passed by majority votes of both houses of the Legislature and presented to the Governor, who must sign it or allow it to become law without signing it. Kan. Const. art. 2, §§ 13, 14. If the bill is vetoed by the Governor, it can still become law if that veto is over- ridden by two-thirds majorities in both houses. Kan. Const. art. 2, § 14(a). There is no dispute K.S.A. 48-924 and K.S.A. 2019 Supp. 48- 925 were duly enacted into law. Conversely, there is no dispute HCR 5025 was not duly enacted into law. That means the real question is whether LCC oversight had to be put into statute for the LCC to gain these powers. My answer would be, Yes. There is a lawful way of making that happen, and this is not it. 350 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council

In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 46, 64, 687 P.2d 622 (1984), the court held the Leg- islature may not by concurrent resolution "adopt, modify or revoke administrative rules and regulations . . . without presentment to the governor." It reasoned that the mechanism would

"violate[ ] not only the separation of powers doctrine but also the presentment requirement contained in art. 2, § 14 of our state constitution. As made clear by the court in [I.N.S. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983)], a resolution is essentially legislative where it affects the legal rights, duties and regulations of persons outside the legislative branch and therefore must comply with the enactment provisions of the constitution. Where our legislature attempts to reject, modify or revoke administrative rules and regulations by concurrent resolution it is enacting legislation which must comply with the provisions of art. 2, § 14. A bill does not become a law until it has the final consideration of the house, senate and governor as required by art. 2, § 14. This was not done here. "[Citations omitted.]" 236 Kan. at 64.

This analysis should apply with equal force to the Legisla- ture's bungled effort here to alter K.S.A. 2019 Supp. 48-925 through HCR 5025. And despite the LCC's claim that it was simply fulfilling on the Legislature's behalf that body's responsibilities under the disaster proclamation statutes, HCR 5025 tries to change the process. KEMA assigns duties to the Governor, the Legislature, and the State Finance Council—with no mention of the LCC, and no provision for the LCC to act in the Legislature's stead. This is particularly notable since the Legislature made provisions in the law for another entity, the State Finance Council, to approve disaster emergency extensions when the Legislature is not in session. See K.S.A. 48-924(b)(3), (b)(4). Obviously, by naming the State Finance Council for this purpose, the Legislature contemplated a need to delegate some authority under the Act when it is not in session. But just as plainly, it chose not to do that with respect to oversight of emergency orders. For those, it kept the full bodies of each legislative house in the approval loop. See Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019) ("When the language is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should be. The court will not VOL. 311 SUPREME COURT OF KANSAS 351

Kelly v. Legislative Coordinating Council speculate about legislative intent and will not read the statute to add something not readily found in it."). The concurrent resolution's asserted conveyance of oversight power is legislative in nature. The change it attempts impacts the rights and duties of persons outside the legislative branch: for one, the Governor. It did this by subjugating the Governor's disaster powers to repeated oversight by a body other than the ones specified by KEMA. What's more, the LCC acted on that authority in a manner that brings the alteration of rights and responsibilities into stark relief—with practical alterations to the rights and duties of persons outside the legislative branch. The LCC's implementation of HCR 5025 casts a cloud over the continuing validity of the Governor's emergency orders, and, consequently a cloud over the enforcement and compliance obligations of Kansas law enforcement officers and Kansans generally. And it did this at a critical time for our state—in the face of an incomprehensibly complex public health crisis. As a result, for the Legislature to validly confer oversight authority to the LCC, bicameral adoption and presentment were required, i.e., the constitutional steps required for a bill to become a law. That simply did not happen here. And expediency is no excuse to circumvent legal process mandated by the people through our Constitution. If the law is antiquated and should be changed, change it. But HCR 5025 is not the way to amend statutes even if it had strong support in both houses. There was no presentment as required by the Constitution to make a law. For that reason, HCR 5025 did not vest the power for the LCC to revoke an emergency order issued by the Governor under K.S.A. 2019 Supp. 48-925.

* * *

STEGALL, J., concurring: I concur with and fully join the majority opinion today in both rationale and result. I write separately to briefly address Justice Biles' separate opinion and to address a few points not emphasized in the majority opinion. Justice Biles writes to suggest that even if HCR 5025 had effectively assigned to the LCC the authority to revoke EO 20-18, such action would still be unlawful. I do not take a position on that 352 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council question as it is not necessary to resolve the case before us. But I do disagree with Justice Biles when he writes that the "LCC does not make even a colorable claim" that its action was a concurrent resolution of the Legislature in compliance with K.S.A. 2019 Supp. 48-925(b). Slip op. at 14 (Biles, J., concurring). Part of the LCC's argument is that its action was contemplated by—and in- corporated into by assignment—HCR 5025 when the Legislature as a whole adopted it. To me, this claim is at least colorable in light of the vexing separation of powers problems created when one branch of government delegates its power to another branch as the Legislature has done (in part) in KEMA. Absent a liberal interpretation of the Legislature's ability to continually oversee the Governor's exercise of delegated Legislative authority, the structure of KEMA itself risks violating the constitutional demand of separate powers. See Solomon v. State, 303 Kan. 512, 538, 364 P.3d 536 (2015) (Ste- gall, J., concurring) ("The separation of powers contains no opt- out clause. The departments are not free to ignore the strictures of separate powers upon a mutual declaration of cooperation in furtherance of some jointly agreed upon governmental objective."). Next, given the extraordinary nature of this action and the heightened public attention it has drawn, I find it necessary to address one argument gestured at by the LCC but not actually joined. As the majority opinion explains, HCR 5025's plain text requires an act of the State Finance Council to trigger the ability of the LCC to exercise the power assigned to it by the Legislature as a whole. It is important to emphasize that at oral argument, the LCC conceded that this was the only possible reading of the plain language of HCR 5025. Having conceded the textual ground of the battle, counsel for the LCC suggested at one point that the language in HCR 5025 did not accurately reflect the Legislature's intent and could be by- passed. In support of this argument, counsel pointed out that the entirety of HCR 5025(1)—along with the introductory phrase in HCR 5025(2)—can have no legal or practical effect and is therefore nonsensical. Indeed, the LCC appears correct on this point. The statute referenced in HCR 5025(1)—K.S.A. 48-924(b)(3)—only authorizes VOL. 311 SUPREME COURT OF KANSAS 353

Kelly v. Legislative Coordinating Council the State Finance Counsel to extend a gubernatorial state of disaster emergency declaration 30 days beyond the initial 15-day period contemplated by KEMA. See K.S.A. 48-924(b)(3) ("[N]o state of disaster emergency may continue for longer than 15 days unless ratified by concurrent resolution of the legislature, with the single exception that upon specific application by the governor to the state finance council and an affirmative vote of a majority of the legislative members thereof, a state of disaster emergency may be extended once for a specified period not to exceed 30 days beyond such 15-day period."). Counsel points out that 45 days beyond the Governor's initial declaration will occur earlier than May 1, 2020—the date of the Legislature's already-adopted extension. So, it appears that under HCR 5025 the State Finance Council cannot extend the declaration past May 1 under any imaginable sce- nario. Further, it appears K.S.A. 48-924(b)(3) operates only while the Legislature is in session. A different statute—K.S.A. 48- 924(b)(4)—gives the State Finance Council broader power to extend a disaster declaration when the Legislature is out of session. See K.S.A. 48-924(b)(4) (providing that "when the legislature is not in session and upon specific application by the governor to the state finance council and an affirmative vote of a majority of the legislative members thereof, a state of disaster emergency may be extended for a specified period not to exceed 30 days" and further stating that the State Finance Council may then "authorize additional extensions of the state of disaster emergency by a unanimous vote of the legislative members thereof for specified periods not to exceed 30 days each") (Emphasis added.). Again, the text of HCR 5025— suggesting that when the Legislature is out of session the State Finance Council could operate under a statute intended to apply only when the Legislature is in session—is self- contradictory. All of this is enough to convince me that HCR 5025(1) and the introductory phrase of HCR 5025(2) are—as the LCC insists—at best a poor reflection of the Legislature's intent. Both the Governor and the LCC suggest that this court could therefore choose to side-step that portion of the Concurrent Resolution and rule directly on the question of whether the LCC could exercise 354 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council any authority under HCR 5025(2)(A) and (2)(D). Giving the LCC the benefit of a good-faith rendition of the best version of their argument—as I think we must in this extraordinary and expedited action—the LCC essentially argues that a literal reading of HCR 5025 would produce absurd results. Though not couched in our traditional statutory interpretation lingo, the LCC suggests: (1) it is absurd for HCR 5025(1) to contemplate a meeting of the State Finance Council that is both legally impossible and practically impotent; (2) this absurdity ren- ders HCR 5025 ambiguous as to whether the State Finance Coun- cil must act before the LCC can act; (3) this court should therefore look behind the plain language used by the Legislature to discern legislative intent; and (4) the Legislature intended the LCC to act in the manner that it has acted. We have said before that we may depart from our strict adher- ence to the plain text of a law if that plain reading produces obviously absurd results. A court "must construe a statute to avoid inherently unreasonable or absurd results." State v. Arnett, 307 Kan. 648, 654, 413 P.3d 787 (2018). We presume "the legislature does not intend to enact useless or meaningless legislation. . . . Equally fundamental is the rule of statutory interpretation that courts are to avoid absurd or unreasonable results." State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014). "Additionally, when the meaning of a statute is not clear from its plain language, we may consider the provisions of the entire act with a view toward rec- onciling and bringing them into harmony if possible. . . . The court always strives for a reasonable interpretation or construction that avoids an unreasonable or absurd result." Baker v. State, 297 Kan. 486, 488, 303 P.3d 675 (2013); see Manning, The Absurdity Doc- trine, 116 Harv. L. Rev. 2387, 2394 (2003) ("The absurdity doctrine rests on the intuition that some such outcomes are so unthink- able that . . . courts may safely presume that legislators did not foresee those particular results and that, if they had, they could and would have revised the legislation to avoid such absurd results."). The problem with this version of the LCC's best argument is that it is not obvious why this court should rewrite HCR 5025 in VOL. 311 SUPREME COURT OF KANSAS 355

Kelly v. Legislative Coordinating Council the LCC's preferred manner—by avoiding the problematic language entirely. Even when construing a patently absurd statute, courts still must privilege clues emanating from the text itself over post hoc claims of intent. Here, the absurdity pointed out by the LCC could just as easily be rectified by changing the citation in HCR 5025(1) from K.S.A. 48-924(b)(3) to K.S.A. 48-924(b)(4). That change may make more sense out of the textual hash. It fits with the language of the Concurrent Resolution contemplating a Legislature not in session and it would avoid the factual impossi- bility of the State Finance Council being unable to extend the Gov- ernor's declaration beyond May 1, 2020. See K.S.A. 48-924(b)(4) (permitting serial extensions of 30 days each). Given this (along with the uniqueness of these proceedings), my best judgment is to hold fast to the tried and true bedrock of legal interpretation and analysis—the words on the page. This commitment both constrains judicial action in circumstances where judges are ill-suited to make rules on the fly and gives the policy-making branches of government the greatest leeway to fix problems of their own making. One final point bears mentioning. All the parties here—along with the Attorney General—have participated in one way or another in multiple meetings surrounding the issues raised by HCR 5025. All the parties participated without objecting to—or even questioning—the LCC's power to act under HCR 5025. And at oral argument, we learned for the first time that the parties were aware of the textual problems from the very beginning. Counsel for the LCC explained that "the issue … was identified, and so the Governor's office and the legislative leadership and even the Attorney General got together and said you know this is sort of a problem here." Counsel went on to say that the "Attorney General advised them, my understanding, that this was going to be a problem, and the Legislature and the Governor's office said 'well let's just go forward because we're dealing with extraordinary times here.'" During his rebuttal time, the Governor's counsel did not dispute this recitation of the facts. We have no record of these facts. So we cannot know for certain what happened. But counsel's explanation has the virtue of at least making sense of the seemingly insensible. How could the 356 SUPREME COURT OF KANSAS VOL. 311

Kelly v. Legislative Coordinating Council

LCC meet in direct and obvious contravention of HCR 5025— with the Governor's tacit approval or acquiescence—and nobody raised a hand to question the propriety of what was happening? Without a doubt, everyone involved has been putting forth an extraordinary effort to keep Kansans safe in unprecedented times. And certainly everyone involved is a dedicated public servant with the best intentions to perform his or her duties to the best of their abilities for the benefit of us all. Nonetheless, public officials have an ongoing duty to adhere to the law. This duty doesn't evaporate in a crisis—in fact, a crisis may heighten the duty. Had someone questioned the authority of the LCC to ratify or reject Governor Kelly's executive orders under HCR 5025 at the outset—when they knew there was a problem—we, collectively, may not have been placed in the immensely difficult position of litigating the lawfulness of EO 20-18 in the few days just before Easter. And finally, it is worth emphasizing a point clarified at the outset of the majority opinion. Today's decision does not decide the religious liberty dimensions of this dispute. All the parties, including the legislative parties, agreed that those arguments and claims are not properly before this court in this action, and must wait to another day for resolution.

VOL. 311 SUPREME COURT OF KANSAS 357

State v. Broxton

No. 114,675

STATE OF KANSAS, Appellee, v. DARRELL BROXTON, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Jury Instructions—Jury Instructed on Uncharged Crime Only for Lesser Included Offense. It is not legally appropriate to instruct a jury on an uncharged crime unless it is a lesser included offense of a charged crime.

2. EVIDENCE—Prior Crimes or Bad Acts Evidence—Related Exculpatory Evidence is Relevant. When a district court permits evidence of prior crimes or bad acts under K.S.A. 60-455, exculpatory evidence related to the same prior crime or bad act is relevant.

3. APPEAL AND ERROR—Developments in Law While Case Pending May be Claimed. A defendant may claim the benefit of developments in the law occurring while his or her case is pending on direct appeal.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 9, 2017. Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed April 17, 2020. Judgment of the Court of Ap- peals affirming the convictions, vacating the sentence, and remanding the case is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, the sentence is vacated, and the case is remanded with directions.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Jose V. Guerra, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

STEGALL, J.: Darrell Broxton appeals from his second-degree murder, burglary, and felony theft convictions. Broxton claims the district court committed three reversible errors by (1) failing to give a felony-murder instruction; (2) excluding from evidence a document from a Florida homicide investigation; and (3) improperly scoring Broxton's prior Florida burglary conviction as a person felony. As discussed below, we reverse the Court of Appeals' holding that a district court may elect to provide a felony-murder instruc- 358 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton tion when that crime was not charged. As such, we affirm the district court's finding that the instruction was not legally appropriate. We agree with Broxton, however, that the district court erred when it refused to admit the exculpatory document from the Flor- ida homicide investigation into evidence on the ground it was not relevant. But, in light of the State's case at trial, we hold this error was harmless. Finally, we conclude Broxton's prior Florida burglary conviction must be scored as a nonperson felony.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2012, Peter Belmont was found dead in his home. Belmont died as a result of trauma to the back of his head. Numerous items were missing from Belmont's home, including his van. Investigators discovered DNA evidence on a bottle of bleach and a bottle of orange juice left at the scene. Later testing indicated that one of the samples contained a mixed DNA profile consistent with Broxton and the other sample contained Broxton's DNA. Several weeks after Belmont's body was found, police pulled over Belmont's van. One of the passengers, Clifford Harris, said he had rented the van from James Hunter and Brian Keatings. Har- ris later identified Broxton as the man he knew as Brian Keatings. When questioned, Hunter told police that in December, Broxton had picked him up in the same van filled with televisions, stereos, and laptops. According to Hunter, he and Broxton sold several of those items and exchanged the van for crack cocaine. Police then discovered several items from Belmont's home at Broxton's apartment, including Belmont's stereo, various Sony- branded sound equipment, a red and black Amsterdam pen, co- logne, an NYU logo sweatshirt, a pair of slacks, a belt, a notebook, an envelope, a piece of paper, and a business card. The NYU sweatshirt was blood-stained in three places. DNA testing of one sample yielded a partial major profile consistent with Broxton's DNA. Another sample contained both Broxton's and Belmont's DNA. During an interrogation, Broxton admitted he knew Belmont and claimed that he and Belmont had had a consensual sexual encounter in Belmont's van. But Broxton denied taking Belmont's VOL. 311 SUPREME COURT OF KANSAS 359

State v. Broxton possessions and claimed the items in his apartment were left by a former roommate or were purchased at Goodwill. In addition, the investigation revealed that Broxton's mother's and sister's phones, which Broxton often used, had been used to call Belmont's number between November 1 and December 5, 2012. After December 5, the calls ceased. The calendar hanging in Belmont's kitchen included an entry noting "Darrell over" on December 5, 2012. The State charged Broxton with first-degree premeditated murder; burglary of Belmont's van; felony theft of the van; and misdemeanor theft of Belmont's electronic equipment, clothes, and a pen. At trial, the district court instructed the jury on first- degree premeditated murder and the lesser included offense of second-degree intentional murder. Ultimately, a jury convicted Broxton of second-degree murder, burglary, and felony theft.

ANALYSIS

It was not error to refuse to give a felony-murder jury instruction.

At trial, Broxton requested a felony-murder instruction. Brox- ton told the court he knew "it was not charged that way, . . . but there [was] certainly evidence that there was property taken." He continued that a jury could reasonably "consider this to be a robbery and a death occurring during a robbery, which would . . . satisfy the requirements to find felony murder as opposed to premeditated first[-]degree murder." The district court denied Broxton's request, ruling that a felony-murder instruction was inappropriate because the State only charged Broxton with first-degree premeditated murder. Because felony murder is not a lesser included offense of first-degree premeditated murder, the district court reasoned that such an instruction would not be appropriate. The Court of Appeals considered Broxton's claim and held that "[c]aselaw indicate[d] that there was no legal impediment to the trial court giving a felony murder instruction here." State v. Broxton, No. 114,675, 2017 WL 5184435, at *4 (Kan. App. 2017) (unpublished opinion). It explained that "felony murder is not a lesser included offense of first-degree premeditated murder," but "a trial court may instruct the jury on felony murder even though 360 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton the State only charged the defendant with premeditated first-degree murder." 2017 WL 5184435, at *4. The Court of Appeals explained that even though the district court may elect to do so, the district court is under no duty to instruct for felony murder under those circumstances. 2017 WL 5184435, at *5. It relied upon State v. Young, 277 Kan. 588, Syl. ¶ 4, 87 P.3d 308 (2004), which held that "'[t]he fact that felony murder is not charged in an information does not preclude an instruction when evidence supports the instruction and the defendant is not unfairly surprised by the prosecution's reliance on that theory.'" Broxton, 2017 WL 5184435, at *4. Finding that a felony-murder instruction "may be so instructed if the facts call for giving the instruction," the Court of Appeals examined the facts and held that such an instruction was not factually appropriate. 2017 WL 5184435, at *5-6. The panel concluded that none of the evidence indicated that Belmont's murder took place during the robbery. Broxton, 2017 WL 5184435, at *6. Thus, because the killing was not part of the res gestae of the robbery, the killing could not be felony murder. Broxton petitioned this court for review, claiming the Court of Appeals erred when it held that a felony-murder instruction was not factually appropriate. The State cross-petitioned, arguing that the Court of Appeals erred when it held that a felony-murder instruction was legally appropriate. When analyzing jury instruction claims, we first determine whether we "'can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018). Next, we consider the claim's merits "'to determine whether error occurred below.'" 307 Kan. at 317. Finally, if error occurred at the district court, we ask whether that "'error requires reversal, i.e., whether the error can be deemed harmless.'" 307 Kan. at 317. The error determination requires us to consider whether the instruction was legally and factually appropriate. Appellate courts exercise unlimited review when determining whether an instruction was legally appropriate. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016). VOL. 311 SUPREME COURT OF KANSAS 361

State v. Broxton

The issue was properly preserved. Thus, we first consider whether the requested instruction was legally appropriate, and only if the answer is "yes" will we move on to a consideration of whether it was factually appropriate. A legally appropriate jury instruction "'fairly and accurately state[s] the applicable law, and an instruction that does not do so [is] legally infirm.'" State v. Mur- rin, 309 Kan. 385, 392, 435 P.3d 1126 (2019). The panel below held that the district court did not have a "duty" to provide a felony-murder instruction but suggested that if it elected to do so, such an instruction could have been legally appropriate. The Court of Appeals held this despite conceding that felony murder is not a lesser included offense of first-degree premeditated murder. Broxton, 2017 WL 5184435, at *5-6. The panel cited our Young decision to support its conclusion that the trial court could have instructed the jury on felony murder even though the State only charged Broxton with first-degree premeditated murder. Broxton, 2017 WL 5184435, at *4-5. In Young, the defendant was charged with premeditated first- degree murder. The district court, however, without a request from either party but also without objection, gave a felony-murder instruction. The jury ultimately convicted Young of felony murder. On appeal, Young argued the felony-murder instruction was reversible error. Young, 277 Kan. at 593-97. The Young court began its analysis by observing that the felony-murder instruction "was not a correct statement of Kansas law, because felony murder is not a 'lesser offense' of premeditated first-degree murder." 277 Kan. at 593. But the Young court permitted the instruction, after concluding that "the evidence presented at trial was plainly sufficient to support Young's felony- murder conviction." 277 Kan. at 596. Thus, even though the "misstatement was literally [erroneous]" it was not "'clearly erroneous' because the remainder of the instruction's content and its inclusion in the case were proper." 277 Kan. at 594. Thus, the court concluded it was "not error to have the jury consider a felony-murder theory in the alternative to a premeditation theory, even though felony murder had not been described in the information." 277 Kan. at 594. 362 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton

The decision in Young predates the more streamlined and precise framework for analyzing jury instructions this court adopted in 2012 in State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012). Prior to Plummer, appellate review of jury instruction claims was decidedly more scattershot. To remedy these inconsistencies, we enumerated a four-step analysis appellate courts still follow. 295 Kan. at 160-63 (listing the now-familiar steps of considering [1] reviewability; [2] legal appropriateness; [3] factual appropriateness; and [4] harmlessness). We often state that our caselaw considering jury instruction questions published prior to Plummer's recalibration is less reliable than its post-Plummer counterparts. See, e.g., Foster v. Klau- mann, 296 Kan. 295, 301, 294 P.3d 223 (2013) ("This court recently held that its prior decisions applied an 'imprecise' standard of review for jury instruction issues and set forth an analytical framework with accompanying standards of review to promote greater consistency."); State v. Tague, 296 Kan. 993, 1009, 298 P.3d 273 (2013) ("[W]e observed that our past caselaw tended to blend or conflate the determinations of appellate reviewability, error on the merits, and reversibility of the error."). This history col- ors our view of Young and its precedential value. It is helpful to note, though, that the Young court did analyze the legal appropriateness of the felony-murder instruction and concluded that "[t]he felony-murder instruction given in Young's case was not a correct statement of Kansas law, because felony murder is not a 'lesser offense' of premeditated first-degree murder." Young, 277 Kan. at 593. The Young court plainly held that the felony-murder instruction was not legally appropriate. The analysis should have stopped there. Instead, the Young court then proceeded to an analysis of the instruction's factual appropriateness:

"Here, the evidence presented at trial was plainly sufficient to support Young's felony-murder conviction. At the time of the murder, Young was involved in the sale of cocaine, which is listed as an inherently dangerous felony. Young was carrying a gun; he threatened to shoot Horn if Horn turned the key in the car's ignition; and he shot into the car five times when the drug deal soured. [Citation omitted.]" 277 Kan. at 596-97.

VOL. 311 SUPREME COURT OF KANSAS 363

State v. Broxton

Finally, the Young court addressed reversibility, holding that there was "no reasonable possibility that the jury would have rendered a different verdict if the district court had not made the mis- take of calling felony murder a 'lesser offense' of premeditated murder." 277 Kan. at 597. When considered in isolation, our decision in Young does support the notion that a defendant may be convicted of a crime that was never charged and is not a lesser included offense of any charged crime. But, when viewed through the Plummer lens, the misstep in Young becomes apparent. Under our current analytical framework, the district court was correct when it denied Broxton's request for a felony-murder instruction. This is because it does not matter whether such an instruction might have been factually appropriate. If an instruction is not legally appropriate the analysis ends there. Moreover, permitting the district court to provide jury instructions for crimes the State did not charge (or their lesser included offenses) would upset the basic structure of criminal trials. Judge Atcheson's concurring opinion below summarizes succinctly:

"[A] criminal defendant has no right to have a jury instructed on crimes the State has refrained from charging, save for lesser included offenses of those crimes that actually have been charged. The State functionally has unbridled control over what to charge against a given defendant—that's the essence of prosecutorial discretion. . . . Whatever the reasons, the call belongs to the State. A defendant has no correlative right to insist a jury be instructed on uncharged crimes even if the trial evidence tends to establish them. That would contravene prosecutorial discretion. [Citation omitted.]" Broxton, 2017 WL 5184435, at *12 (Atcheson, J., concurring).

We agree with Judge Atcheson. Because the State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime he was charged with—a felony-murder instruction was not legally appropriate in this case. Given this, we will not consider whether such an instruction would have been factually appropriate.

364 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton

The district court erred by excluding the Florida "No Information" document from evidence, but the error was harmless.

Next, Broxton takes issue with the district court's exclusion from evidence of an exhibit originating in Florida referred to as a "No Information" document. At trial, the State had produced evidence of a 1996 Florida homicide. A Florida police detective testified to details in that case which closely mirrored Belmont's homicide. These facts included: the Florida murder victim was an older homosexual man; the victim often had homosexual indigent male visitors; these visitors often were drug users; the crime scene showed no signs of forced entry; the victim was struck in the head with a hammer; police discovered blood spatter on the walls and ceiling; a TV and VCR were missing from the victim's house; the victim's vehicle was taken; and a water glass was left behind at the scene. Broxton, 2017 WL 5184435, at *3. While Florida authorities issued a warrant for Broxton's arrest, Broxton was never for- mally charged with the crime. The State also admitted a taped interview of Broxton by Florida police in 1998. On the tape, Brox- ton admits to knowing the Florida victim and being at the victim's house smoking crack cocaine when the Florida victim died. Brox- ton claims in the recording that another individual at the house killed the Florida victim. Broxton objected to the evidence, but the district court admitted it to prove identity under K.S.A. 2019 Supp. 60-455. Having lost that challenge, Broxton sought to mitigate its impact by intro- ducing into evidence a "No Information" document executed by the Florida prosecutor in the case. The document read:

"'Comes now the State of Florida, by and through its undersigned Assistant State Attorney, and announces that it will file no information in the above entitled cause based on the following grounds:

'ALTHOUGH PROBABLE CAUSE EXISTED WHICH JUSTIFIED THE ISSUANCE OF THE CIRCUIT JUDGE'S WARRANT, THERE IS INSUFFICIENT EVIDENCE AT THIS TIME TO PROCEED WITH PROSECUTION BECAUSE THE EXCULPATORY STATEMENT MADE BY THE DEFENDANT AFTER THE WARRANT WAS ISSUED CANNOT BE DISPROVED.'" 2017 WL 5184435, at *7.

The trial court denied the admission of the No Information document on the grounds that it was not probative and therefore VOL. 311 SUPREME COURT OF KANSAS 365

State v. Broxton was irrelevant. The court found "the allegations in Florida . . . are uncannily similar to the actions [Broxton was] accused of here in Kansas. What the prosecutor decides to do or has decided to do with the evidence in front of them in Florida is irrelevant." The Court of Appeals held that the evidence was relevant and that it was error to exclude it. 2017 WL 5184435, at *8. The panel reasoned that "evidence that Broxton did not commit one of the murders is evidence he did not commit either of the murders. Broxton denied that he was the perpetrator of either offense. That Broxton was never charged because of insufficient evidence is not dispositive but certainly relevant." 2017 WL 5184435, at *8. Nonetheless, the Court of Appeals found the error was harmless. 2017 WL 5184435, at *8. These rulings are challenged by both parties. Broxton seeks to overturn the panel's harmlessness conclusion, while the State urges us to reverse the finding of error. "'Evidence is probative if it furnishes, establishes, or contrib- utes toward proof. Probativity is reviewed for abuse of discretion.'" State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016). A district court abuses its discretion when its action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The district court believed the No Information document was not probative because it did not decisively state that Broxton was innocent of that crime. Instead, the No Information document only indicated that the State of Florida lacked evidence sufficient to charge Broxton. The district court found this distinction dispositive. The Court of Appeals held the evidence was "certainly relevant," implying that the district court's ruling was unreasonable. Broxton, 2017 WL 5184435, at *8. We agree. The district court believed evidence potentially implicating Broxton in a Florida homicide was probative to prove the material fact of identity. It should follow that evidence tending to show the State of Florida's inability to charge Broxton would be probative of disproving that same material fact. Thus, in these circumstances, the district court abused its discretion when it ruled that the No Information document lacked probative value and ruled it inadmissible. 366 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton

Having decided the district court erred when it excluded the No Information document, we must consider the resulting prejudice, if any. We review any erroneous exclusion of evidence under the harmless error test enumerated in K.S.A. 2019 Supp. 60-261 "which asks whether 'there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.'" State v. Burnett, 300 Kan. 419, 434, 329 P.3d 1169 (2014) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]). Reviewing the record, we hold that any prejudice resulting from the document's exclusion was harmless. It is unlikely that the inclusion of the document would have swayed the jury. The No Information document did not vouch for Broxton's innocence in the Florida homicide—it only stated that Florida prosecutors lacked sufficient evidence to charge Broxton "at th[at] time." Broxton, 2017 WL 5184435, at *7. In light of the entire record, it is highly unlikely that this single document proclaiming the State of Florida's inability to charge Broxton for the homicide would have persuaded jurors to change their votes. This is in part because the identity evidence from the Florida homicide painted a convincing picture. Both the Florida homicide victim and Belmont associated with indigent drug users, engaged in sexual relationships with those drug users, and died of trauma to the head from multiple strikes leaving behind similar blood spatter evidence. Both crime scenes lacked signs of forced entry and had various types of electronic equipment, including televisions, stolen from them. Beverage containers recovered at each scene contained Broxton's DNA. In both cases, the victim's vehicle was taken from the scene and later linked to Broxton. More important, however, even if we were to concede the district court's evidentiary error tainted the entirety of the State's Flor- ida identity evidence, the remaining evidence against Broxton was overwhelming. Broxton was identified as the individual who was driving Belmont's van while it was filled with items similar to items stolen from Belmont's home. Police discovered Belmont's stereo equipment, pen, sweatshirt, and other belongings in Brox- ton's apartment. Broxton admitted to police he had been in Bel- mont's van. The sweatshirt had a spot containing one partial major VOL. 311 SUPREME COURT OF KANSAS 367

State v. Broxton profile consistent with Broxton's DNA, and two spots containing Broxton's DNA mixed with Belmont's DNA. Cell phones Broxton had access to frequently made phone calls to Belmont's number, but those calls ceased after December 5, 2012—the same day marked as "Darrell over" on Belmont's kitchen calendar. Finally, DNA evidence consistent with Broxton's DNA was recovered from a bleach bottle at the scene, and Broxton's DNA was found on the orange juice bottle left behind. The State's case at trial was significant and convincing. In light of all these considerations, we are confident in determining that the evidentiary error was harmless.

The 1989 Florida burglary conviction must be scored as a nonperson felony.

After sentencing, the State objected to Broxton's presentence investigation report (PSI). The State claimed that a prior 1989 Florida burglary conviction should have been scored as a person felony under amendments to K.S.A. 21-6810(d), 21-6811(c) and (j). The district court agreed and scored the conviction as a person felony. Broxton appealed and claims the offense has been improperly scored because it is not a "comparable offense" under Kansas law. It is undoubtedly the case that the law used to determine comparable offenses in Kansas has been in a state of flux for several years. Early on, "'[f]or purposes of determining criminal history, the offenses need only be comparable, not identical,'" and a '"comparable offense' was 'the closest approximation' to the out-of-state crime." State v. Weber, 309 Kan. 1203, 1206, 442 P.3d 1044 (2019) (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 [2003]). But we reconsidered the statutory meaning of "comparable" in State v. Wetrich, 307 Kan. 552, 561-62, 412 P.3d 984 (2018). There, we held that "[f]or an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime." Put another way, "the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." (Em- phasis added.) 307 Kan. at 562. 368 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton

Then, in Weber, 309 Kan. at 1206, we synthesized several recent developments. We explained that in State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019) (Murdock II), we held:

"'[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time—the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law.'" (Emphasis added.) We- ber, 309 Kan. at 1209 (quoting Murdock II, 309 Kan. at 591).

Applying this rationale, we held that "Wetrich was a change in the law as contemplated by Murdock II." Weber, 309 Kan. at 1209. We affirmed Weber's conviction on that basis:

"Before Wetrich, no Kansas case construed the term 'comparable' as used in K.S.A. 2018 Supp. 21-6811(e)(3), formerly K.S.A. 21-4711(e), to incorporate the identical-or-narrower requirement. Vandervort rejected such a construction when it reviewed a defendant's claim that an out-of-state offense and a Kansas offense could not be comparable since the out-of-state offense was broader, i.e., did not contain a lack-of-consent element required to commit the Kansas crime. . . . "Under the law at the time of Weber's sentencing, as he concedes, '[f]or purposes of determining criminal history, the offenses need only be comparable, not identical.' In Murdock II's wake, he cannot argue Wetrich makes his sentence, which was legal when it was imposed, illegal. [Citations omitted.]" 309 Kan. at 1209.

Consistent with this holding, we then made it clear that Wetrich is "inapplicable to sentences finalized before Wetrich was decided." State v. Bryant, 310 Kan. 920, 453 P.3d 279, 281 (2019). After this dust had settled, Broxton—while on direct appeal— made a Wetrich claim before us for the first time. And on the merits, he is correct. We have already decided that the Florida burglary statute does not create a comparable offense and therefore it must be scored as a nonperson felony. State v. Buell, 307 Kan. 604, 608, 412 P.3d 1004 (2018) (Comparing K.S.A. 2011 Supp. 21-5807 to Fla. Stat. § 810.02 [2002] and concluding that "[m]any alternative means may have supported the mental state element for the Florida adjudications . . . that would not have been any kind of burglary in Kansas" and therefore "the Florida burglary adjudications were not comparable to the Kansas offense of burglary."). VOL. 311 SUPREME COURT OF KANSAS 369

State v. Broxton

Our only obstacle to providing relief to Broxton on this claim is the fact that he raised it for the first time on appeal. The vehicle of a motion to correct an illegal sentence is unavailable to him because his sentence was legal when pronounced. See Bryant, 453 P.3d at 281; Weber, 309 Kan. at 1209; Murdock II¸ 309 Kan. at 591; Wetrich, 307 Kan. at 562. We recently considered this precise issue in State v. Williams, 311 Kan. 88, 456 P.3d 540 (2020). During Williams' appeal, he argued for the first time, based on and citing to Wetrich, that his sentence was illegal because the district court had incorrectly scored an out-of-state conviction as a person crime. Williams, 311 Kan. 93. When we addressed the illegal sentence claim, we explained that "Murdock II and Weber preclude Williams from arguing that he received an illegal sentence" because:

"At the time Williams was sentenced, out-of-state convictions were classified as nonperson or person crimes depending on whether Kansas had a 'comparable' offense in effect on the date the current crime was committed. At the time of Williams' sentencing in July 2015, the meaning of 'comparable' was defined as the 'closest approximation.' "Under this standard of 'comparable,' Williams' Mississippi unnatural intercourse conviction was comparable to aggravated criminal sodomy, a person felony. According to our decision in Murdock II, Williams cannot argue Wetrich makes his sentence, which was legal when it was imposed, illegal. [Citations omitted.]" 311 Kan. at 95.

But our analysis did not stop here. We explained that several avenues are available for relief. 311 Kan. at 95 ("But claiming an illegal sentence . . . is not a defendant's only recourse."). We noted that under Murdock II, "'a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal.'" Williams, 311 Kan. at 95 (quoting Murdock II, 309 Kan. at 591- 92). "And while Williams' case was pending on direct appeal, a change in our law occurred regarding the definition of 'comparable' as stated in K.S.A. 2015 Supp. 21-6811(e)(3)." 311 Kan. at 96. We gave Williams the benefit of the change in law announced in Wetrich and described it as correcting a "sentencing error (as opposed to an illegal sentence)." Williams, 311 Kan. at 96. We summarized the uniqueness of the situation this way: "because Williams' case is pending on direct appeal, he is entitled to the 370 SUPREME COURT OF KANSAS VOL. 311

State v. Broxton benefit of a change in the law. Because Wetrich changed the law governing Williams' sentence, even though Wetrich did not render that sentence illegal, it did render Williams' sentence erroneous." Williams, 311 Kan. at 98-99. Because our caselaw establishes that the Florida burglary statute prohibits a broader range of conduct than the Kansas statute, they do not create comparable offenses. As such, Broxton's sentence—though legal at the time—still constitutes error and he must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony.

We affirm the district court's convictions but vacate the sentence and remand Broxton's case to the district court for resentencing consistent with this opinion.

NUSS, C.J, not participating.1 PATRICK D. MCANANY, Senior Judge, assigned.2

1REPORTER'S NOTE: Chief Justice Lawton R. Nuss heard oral arguments but did not participate in the final decision in case No. 114,675. Chief Justice Nuss retired effective December 17, 2019.

2REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 114,675 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Justice Lee A. John- son.

VOL. 311 SUPREME COURT OF KANSAS 371

State v. Harris

No. 117,362

STATE OF KANSAS, Appellee, v. BRYAN RICHARD HARRIS, Appellant.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Review of Issues Argued First Time on Appeal— Limited Exceptions. Generally, an appellate court does not address issues for the first time on appeal, but there are limited exceptions within defined parameters.

2. CONSTITUTIONAL LAW—Fundamental Right to Trial by Jury. The right to trial by jury is a fundamental right.

3. SAME—Waiver of Right to Jury Trial—Before the right to jury trial can be waived, a defendant must be advised of the right.

4. COURTS—Court must Advise of Jury Trial Right. It is the district court's responsibility to advise a criminal defendant of his or her right to trial by jury.

5. SAME—Court Must Address Defendant Before Accepting Waiver of Jury Trial. While there is no particular checklist a district court must follow to ensure that a defendant knowingly and voluntarily waives the right to trial by jury, at minimum the district court must meaningfully address a defendant's apparent confusion or misunderstanding before accepting any purported waiver of that right.

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 579, 419 P.3d 69 (2018). Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed April 17, 2020. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

Rick A. Kittel, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Sherri L. Becker, county attorney, argued the cause, and Gerald R. Kuckel- man, former county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Bryan Richard Harris was convicted of possession of marijuana, a felony. On appeal, a panel of the Court of 372 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

Appeals affirmed his conviction in a published opinion. Harris petitioned this court for review, asserting ineffective waiver of his right to trial by jury and three other issues. Because we hold that Harris' waiver of jury trial was legally insufficient, we reverse the judgment of the Court of Appeals and the district court and remand for further proceedings. We decline to address the remaining issues.

FACTS

On November 7, 2015, Atchison police officers arrested Har- ris on an outstanding misdemeanor warrant and transported him to the Atchison County Jail in a police cruiser. A restraint chair was needed for Harris, who had become agitated. At some point, the jacket Harris had been wearing slipped down over his hands, which were handcuffed behind his back. At the jail's intake, someone removed Harris' handcuffs and jacket and placed his jacket on the intake bench. An officer checked Harris' pockets and patted him down. Harris was placed in the restraint chair and was "rolled" into a holding cell, where he calmed down. Approximately 20 minutes later, an officer located Harris' jacket, which had been moved from the intake bench to the filing cabinet behind the booking desk. The officer searched the jacket and discovered two cigarillos in one of its pockets. The odor of the cigarillos led the officer to believe that they contained marijuana, which a subsequent field test confirmed. The State charged Harris in two separate cases—one for the misdemeanor charges that led to the warrant (case No. 2015CR275), and the other for the alleged felonies that arose on November 7 (case No. 2015CR276). The only case on appeal is the felony. Both cases were before the district court on February 3, 2016, in a single hearing relevant to this court's inquiry—the misdemeanor case for trial to the court, and the felony case for preliminary hearing. During the course of the combination hearing, the defendant's right to trial by jury did not come up. Harris was convicted as charged for the misdemeanors. On March 28, 2016, Harris came before the court for sentencing in case No. 2015CR275 and for arraignment in case No. VOL. 311 SUPREME COURT OF KANSAS 373

State v. Harris

2015CR276. Harris, now represented by counsel, Andrew Wer- ring, entered a not guilty plea and asked for a trial setting. The following exchange then took place:

"MR. WERRING: We would enter a not guilty plea and ask the Court to set it for trial.

"THE COURT: Thank you. "MR. WERRING: Do you want a judge or a jury? "DEFENDANT: Go with the judge. I want the bench. "THE COURT: Are you asking for a jury trial, Mr. Harris? "DEFENDANT: I'm asking for a bench trial. "THE COURT: Bench trial? Okay. "MR. WERRING: Yes. That's fine. "DEFENDANT: I don't want to waive no liabilities, right? "MR. WERRING: It's up to you. If you want the Court to make a decision— "DEFENDANT: I want the judge to make a decision. "MR. WERRING: —or a jury, that's up to you. "DEFENDANT: I want the judge to. I don't want the Court to. I want the judge to. "MR. WERRING: Okay."

Before the bench trial on May 25, 2016, Harris' replacement counsel, Michael Highland, expressed concern that Harris did not want him to assist with the case. In the discussion that followed, the district court attempted to advise Harris—who apparently wanted to present his own opening and closing arguments, and leave the remainder of the case to his counsel—of his options, "because you don't understand what your rights are as a defendant." As the district court characterized it, Harris was presented with "three options": "Mr. Harris, your options are, as a defendant, you have the right to enter a plea, you have the right to request a jury, and you have the right to testify." The district court went on to state that "[i]n a criminal case, the defendant has the right to decide specific aspects of the case, what plea to enter, whether to waive a jury trial, and whether to testify," but that, "[b]eyond these matters, defense counsel is responsible for strategical and tactical decisions like preparation, scheduling, and the type of defense." Finally, the district court informed Harris that "[Y]ou have the choice, to have an attorney, not to have an attorney, or to have standby counsel."

374 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

In response, Harris stated: "I chose a bench trial because it ain't going to be mostly about deciding what the law is, laws and facts, something the jury don't get to do, as you're well aware of. "I asked him to file certain motions. "He didn't do it.

"He says he knows this is a slam-dunk case for the prosecution. "What I know and what I would like to believe is that I have a fair judge and someone who can decide the law fairly and that isn't going to allow the prosecutor to subvert the law in order to obtain a defense—a criminal—a criminal conviction against somebody who he claims broke the law."

The trial then proceeded, and the court found Harris guilty of marijuana possession. Harris subsequently filed a pro se motion to vacate or set aside, which the district court heard and denied on July 6, 2016. Harris then filed a motion for reconsideration, which the district court rejected prior to sentencing Harris on August 8. Harris timely appealed his conviction to the Court of Appeals, raising four issues. The first issue asserted that Harris did not properly waive his right to jury trial. After the Court of Appeals affirmed his conviction, Harris petitioned this court for review on the same four issues.

ANALYSIS

Because we hold that our ruling on Harris' first issue requires the reversal of his conviction, we need not reach his remaining three issues.

Waiver of Right to Jury Trial

Harris claims the district court failed to advise him of his right to a jury trial or to obtain a proper waiver of that right. In rejecting this argument, the Court of Appeals wrote:

"The issue of Harris' right to a jury trial was addressed at the arraignment and bench trial. At his arraignment, Harris entered a not guilty plea, then his attorney asked if he wanted the trial before a judge or a jury. Harris replied, 'Go with the judge. I want the bench.' When the district court asked if he wanted a jury trial, Harris stated, 'I'm asking for a bench trial.' Harris stated that he did not want to waive 'liabilities' and his attorney responded that it was up to him. As his attorney was asking if Harris wanted a judge or jury to make a determination, Harris spoke over him, saying, 'I want the judge to make a decision. . . . I want VOL. 311 SUPREME COURT OF KANSAS 375

State v. Harris the judge to. I don't want the Court to. I want the judge to.' Harris asserts that by saying that he did not want to give up liabilities, he may have been expressing that he did not want to waive the right to jury trial. However, immediately after he made that statement, his attorney asked if he wanted the judge or the jury to make the determination, to which Harris stated multiple times that he wanted the judge. Harris brought up his choice of having a bench trial again at the beginning of the trial. He stated that he chose a bench trial because he believed the judge was fair and could prevent the prosecutor from subverting the law for a conviction. "Further, Harris' circumstances are unique because he had participated in a bench trial pro se in case No. 2015CR275 immediately before the preliminary hearing in this case. Given his insistence that the judge hear the trial and the fact he had defended himself in a bench trial during the pendency of this case, the particular facts and circumstances of this case show Harris had a sufficient understanding of the difference between a jury trial and bench trial. His waiver was knowingly and voluntarily made." State v. Harris, 55 Kan. App. 2d 579, 586-87, 419 P.3d 69 (2018).

Harris raised this issue for the first time before the Court of Appeals. Generally, the court does not address even constitutional issues for the first time on appeal. State v. Gonzalez, 311 Kan. 281, 295, 460 P.3d 348 (2020). Within its discretion, however, the appellate court may do so if the party trying to raise a new issue shows a recognized exception to the general rule. Those exceptions are:

"'(1) [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim’s consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court’s judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.'" State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019).

We have previously emphasized "the fundamental nature of the right to jury trial." State v. Redick, 307 Kan. 797, 802, 414 P.3d 1207 (2018). In this case, we will address the merits of Harris’ claim to prevent the denial of his fundamental right to a jury trial. Our standard of review for this issue is well-established:

"Whether a defendant waived the right to a jury trial is a factual question, subject to analysis under a substantial competent evidence standard of review. But when the facts of the district court's determination to accept a jury trial waiver are not disputed, the question whether the defendant voluntarily and knowingly waived the jury trial right is a legal inquiry subject to unlimited appellate review." State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012).

376 SUPREME COURT OF KANSAS VOL. 311

State v. Harris

The records of the colloquies between the district court and Harris are not in dispute; "we thus exercise unlimited review on the question of whether [the defendant] acted knowingly and voluntarily." Redick, 307 Kan. at 803. "In doing so, we are mindful that 'jury trial waivers should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury.'" 307 Kan. at 803 (quoting State v. Lewis, 301 Kan. 349, 376, 344 P.3d 928 [2015]). As we have long held, "in order for a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record." State v. Ir- ving, 216 Kan. 588, 590, 533 P.2d 1225 (1975). The judge, therefore, is responsible to ensure that two things occur before a trial to the bench can take place. First, the judge must clearly and unequivocally advise the defendant that they have the right to have their case tried by a jury. Because there is a constitutional right to a jury trial, and no commen- surate right to a bench trial, there is a presumption that a case will be tried to the jury. It is not just a choice between a trial to the judge and a trial to the jury, as was the focus in this case. Second, once the district court has satisfied its obligation to advise the defendant of their right to trial by jury, a waiver of that right may be considered. If the defendant indicates a desire to waive this right, then the judge must ascertain whether the waiver is made freely and voluntarily. "The test for determining a waiver's validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing." Lewis, 301 Kan. at 376. Here, it was Harris' own attorney—not the district court—who broached the subject of a jury trial at arraignment. At that point, the district court did not expressly inform Harris of his right to a jury trial and did not mention Harris' option to waive that right. We are conscious of the possible inference that Harris understood his right to a jury trial because the court and counsel left the choice to him. Never- theless, the district court's framing of the right to a jury trial as a mere option failed to recognize that Harris was entitled to a jury trial by de- fault, without making any affirmative election. Even more, the district court did not engage in a "thoughtful exchange" with Harris about the nature of Harris' right to jury trial. Beaman, 295 Kan. at 860-61. Instead, the discussion centered on the confusion about VOL. 311 SUPREME COURT OF KANSAS 377

State v. Harris what Harris wanted, whether a trial by judge or jury. Once Harris expressed his preference, the district court simply accepted that Harris wanted to have the court decide the matter and moved on without taking any steps to ensure that Harris understood the right he was giving up. Later, on the day of the trial, the district court only mentioned in passing the right to waive a jury trial, and only in the context of a broader discussion that was premised on counsel's concern about Harris' right to an attorney. We have previously refused to establish or enumerate a "checklist" to which district courts must adhere in advising defendants of their right to a jury trial, and we will not establish one here. But when a defendant reveals confusion or a misunderstanding about trial by jury, it is incumbent on the district court to address those misconceptions and try to explain and clarify the right before accepting any purported waiver of that right. Nor can a district court infer that a defendant understands the nature of a jury trial solely based on previous participation in a bench trial or on some other facts not included in the record on appeal. On the facts before us, we hold that the district court failed to properly apprise Harris of his right to a jury trial and failed to ensure that Harris understood the nature of the right he was giving up. Accordingly, we reverse the decisions of the district court and the Court of Appeals and remand the matter to the district court so that Harris can be informed of his right to a jury trial—and either exercise that right or properly waive it. See State v. Frye, 294 Kan. 364, 374, 277 P.3d 1091 (2012). The court declines to address remaining issues on appeal.

CONCLUSION

We reverse Harris' conviction for possession of marijuana and remand for a new trial.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 117,362 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

378 SUPREME COURT OF KANSAS VOL. 311

State v. Frazier

No. 117,456

STATE OF KANSAS, Appellee, v. REGINALD FRAZIER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sentencing—Withdrawal of Plea—Appellate Review. When a defendant moves to withdraw a plea before sentencing and the district court denies the motion, the defendant must establish on appeal that the trial court abused its discretion in denying a presentence motion to withdraw plea.

2. SAME—Sentencing—Withdrawal of Plea for Good Cause. A defendant may withdraw a plea for "good cause shown" prior to sentencing. K.S.A. 2019 Supp. 22-3210(d)(1). In determining good cause, a district court should consider several factors, including whether the plea was fairly and understandingly made.

3. SAME—Sentencing—Uncertain Provision in Plea Agreement. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 25, 2018. Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed April 17, 2020. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

Clayton J. Perkins, of Kansas Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Jason B. Oxford, assistant county attorney, argued the cause, and Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Reginald Frazier appeals the denial of his motion to withdraw plea of no contest to one count of possession of heroin with intent to distribute. The district court found the plea was fairly made and Frazier fully understood the consequences of his plea; thus there was no good cause for Frazier to withdraw his plea. A Court of Appeals panel affirmed the district court after it likewise found that there was no good cause for Frazier to withdraw his plea and consequently no abuse of discretion on the part of the district court. VOL. 311 SUPREME COURT OF KANSAS 379

State v. Frazier

Before us, Frazier again argues that the district court abused its discretion because there were misleading or false statements contained in the plea agreement and he demonstrated good cause to withdraw his plea. For reasons more fully set out below, we reverse the judgment of the district court and the decision of the Court of Appeals and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2015 an officer with the Geary County Sheriff's De- partment stopped a car on I-70 for a license tag violation. Tracy Lee Gould was driving the car. Frazier was a passenger in the car and did not own the car. The two explained that they were on their way from Las Vegas to Ohio, but they gave differing versions of what they had done in Las Vegas. A canine unit arrived at the scene, and the dog alerted to the odor of drugs. A search of the car revealed two bundles of heroin weighing approximately 2.5 pounds, a pistol under the passenger-side floorboard, and $2,300 in cash in Gould's purse and $10,000 in cash on Frazier's person. After the stop and search in Kansas, Ohio law enforcement searched Gould's house in Ohio and found significant quantities of drugs and money as well as personal items belonging to Frazier. Fra- zier denied living at that house. The State of Kansas charged Frazier in this case with one count of possession of heroin with intent to distribute, one count of a drug tax stamp violation, one count of conspiracy with Gould to possess heroin with intent to distribute, one count of criminal transportation of drug proceeds, one count of possession of drug paraphernalia, and one count of criminal possession of a firearm. Frazier eventually signed a plea agreement in which he stated he would enter a plea of no contest to one count of possession of heroin with intent to distribute. The State agreed that Frazier would have a criminal history score of E and would seek a downward durational departure to 96 months. Significantly, the agreement also stated:

"Pursuant to this plea agreement the authorities in Ohio further agree to dismiss and/or not to file any charges resulting out of the search warrant that was obtained as a result of this arrest."

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State v. Frazier

Gould, Frazier's codefendant, also entered into a plea agreement that contained a promise she would not be prosecuted in Ohio. Ohio authorities signed Gould's agreement. They did not sign Frazier's. The district court filed a journal entry approving Frazier's plea agreement and accepting his nolo contendere plea. Frazier later filed a pro se motion to withdraw his plea, which is not contained in the record on appeal. His appointed counsel filed a brief in support of the motion, and the district court deemed the brief to serve as a motion. The court conducted an evidentiary hearing relating to the motion. Lora Ingels had been Frazier's court-appointed attorney through the plea hearing. In her testimony on Frazier's motion to withdraw plea, Ingels said she talked with the Kansas prosecutor. According to him, the Ohio authorities were satisfied that if Frazier served eight years in Kansas, they would not file charges against him in Ohio. Ingels did not speak directly to Ohio authorities, and the plea agreement is signed only by the Kansas prosecutor, Frazier, and Ingels. To date, Ohio has not filed charges against Frazier. Frazier testified that Ingels advised him he must take the plea deal if he wanted to avoid federal prosecution in Ohio. (The plea agreement itself is ambiguous as to whether it covers both state and federal prosecution in Ohio.) The district court denied Frazier's motion, finding that he fully understood the plea agreement and that Ingels told him she did not speak directly with Ohio authorities. The court sentenced him to a downward-departure term of 96 months. Frazier took a timely appeal to the Court of Appeals. In a divided decision, the Court of Appeals affirmed the district court, with Judge Leben concurring. State v. Frazier, No. 117,456, 2018 WL 2375260 (Kan. App. 2018) (unpublished opinion). This court granted Frazier's petition for review.

DISCUSSION

Before sentencing, Frazier moved for leave to withdraw his plea of no contest based on misleading or false statements contained in the plea agreement. He contends on appeal that the district court abused its discretion when it denied his motion.

VOL. 311 SUPREME COURT OF KANSAS 381

State v. Frazier

Standard of Review

When a defendant moves to withdraw a plea before sentencing and the district court denies the motion, the defendant must establish on appeal that the trial court abused its discretion in denying a presentence motion to withdraw plea. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018); State v. Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016) (court abused its discretion in basing its denial on factual findings unsupported by the record). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).

Analysis

A defendant may withdraw a plea for "good cause shown" prior to sentencing. K.S.A. 2019 Supp. 22-3210(d)(1). This is the hurdle that Frazier is required to meet. When determining whether a defendant has demonstrated good cause, a district court should consider at least three factors: (1) was the defendant represented by competent counsel; (2) was the defendant misled, coerced, mistreated, or unfairly taken advantage of; and (3) was the plea fairly and understandingly made? State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). However, it is important to note that courts "should not ignore other [non-Edgar] factors impacting a plea withdrawal that might exist in a particular case." State v. Schaefer, 305 Kan. 581, Syl. ¶ 2, 588, 385 P.3d 918 (2016). In denying Frazier's motion to withdraw his plea, the district court explained:

"The Court believes that Mr. Frazier had a sufficient awareness of the relevant circumstances and likely consequences of what this Plea Agreement would be. If nothing else, because the Plea Agreement spells it out. But also because of the questioning that the Court would have done with Mr. Frazier that day. And also because it doesn't seem that Mr. Frazier has been unfairly surprised by any of [the] events that have occurred since exercising the Plea Agreement. "You know, I guess we could think—sit here and hypothesize what some of those things might be in other worlds, but right now what Mr. Frazier is concerned about, is that Ohio is going to prosecute him down the road. And there's nothing to indicate that that's going to happen. We've got a Plea Agreement that says it's not going to happen. And that's sufficient—that concern is not sufficient for the Court to—to allow Mr. Fra- zier to back out of this Plea Agreement. . . . 382 SUPREME COURT OF KANSAS VOL. 311

State v. Frazier

"So I'm going to deny the defendant's motion; will proceed to sentencing." (Em- phasis added.)

The Court of Appeals panel applied the three factors set out above and affirmed. In particular, the Court of Appeals emphasized that Fra- zier's plea was made knowingly: he was aware that his attorney had not spoken with Ohio authorities and they had not signed off on his plea agreement. Frazier, 2018 WL 2375260, at *3. The Court of Ap- peals concluded that Frazier was not misled or coerced about the possibility of being charged in Ohio. 2018 WL 2375260, at *3. But there is a fundamental problem with the plea agreement that neither the majority nor the concurrence addresses, and it is critical. As the Court of Appeals noted, "The State of Ohio was not a party to the plea agreement and did not sign it." 2018 WL 2375260, at *3. Frazier entered into the agreement with the understanding that he would not face charges in Ohio, but he was relying on a promise of conduct that was not made by a party to the agreement. Plea bargaining agreements are akin to civil contracts and, subject to due process concerns, may be analyzed in a similar fashion. This court has explained:

"'[A] plea agreement is generally subject to contract principles' and, accordingly, the 'application of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional implications of the plea bargaining process may require a different analysis in some circumstances.' State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010); see also State v. Boley, 279 Kan. 989, 992-93, 113 P.3d 248 (2005) (noting the same). Kansas courts have recognized that contracts, with the exception of at-will employment agreements, contain implied covenants of good faith and fair dealing. Estate of Draper v. Bank of America, 288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 (2009). . . . Furthermore, '[t]he law implies that contractual provisions requiring the exercise of judgment or discretion will be honestly exercised and faithfully performed.' Lessley v. Hardage, 240 Kan. 72, Syl. ¶ 7, 727 P.2d 440 (1986). Thus, parties to a plea agreement must act fairly and in good faith in carrying out the promises they have made." State v. Urista, 296 Kan. 576, 583, 293 P.3d 738 (2013).

In the context of civil contracts, a contract generally binds only the parties that enter into the contract and is not enforceable against a third party that did not negotiate the contract, did not accept the terms of the contract, and did not receive any consideration for the contract. See GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 986, 453 P.3d 304 (2019). This is a basic principle of contract law. VOL. 311 SUPREME COURT OF KANSAS 383

State v. Frazier

At oral argument, the State conceded two things. First, the defendant relied on the idea that his plea agreement was binding on Ohio authorities and, in making his decision, he believed that lack of prosecution was a certainty. Second, if the plea agreement is not binding on Ohio authorities, the defendant prevails on his motion to withdraw. If every party agrees that Frazier believed and relied on the idea of this agreement being absolutely binding on Ohio—and it may not be—it makes whatever communication Ingels had with Frazier regarding who spoke to whom less important. From these principles it can be derived that Frazier, contrary to his understanding, signed an agreement containing an important clause that might be binding on no one. While we do not need to conduct the full analysis today, there is a fog of uncertainty regarding whether Ohio authorities have a legally enforceable duty to honor this Kansas plea agreement. It probably would have been possible to obtain signatures from Ohio prosecutors; his codefendant's plea agreement had such signatures. But even then, it is unclear which—if any—Ohio prosecutor would have had authority to guarantee Frazier's protection from state and/or federal prosecution in Ohio. While the district court and the Court of Appeals focused on the fact that Frazier's attorney informed him that she had not spoken with Ohio officials, they paid no heed to the fact that the prosecutor and his attorney presented him with a contract that could be legally unenforceable against any prosecutor in Ohio. This court has held that misinformation provided to a defendant, especially when that misinformation is memorialized in writing, constitutes grounds for withdrawal from the agreement.

"'A criminal defendant's misinformation from counsel about the applicable law during plea negotiations—particularly when reinforced by the written plea agreement and by counsel's and the district judge's incorrect statements during the defendant's plea hearing—easily constitutes good cause to withdraw no contest pleas under K.S.A. 22-3602(a).'" State v. Reu-El, 306 Kan. 460, 474, 394 P.3d 884 (2017) (quoting State v. Kenney, 299 Kan. 389, 394, 323 P.3d 1288 [2014]).

Here, immunity from Ohio prosecution was most certainly a significant factor in Frazier's decision to enter into the plea agreement. The State plainly conceded that Frazier relied on the enforceability of the plea agreement. This reliance is further supported by Frazier's 384 SUPREME COURT OF KANSAS VOL. 311

State v. Frazier concern over the lack of an Ohio signature on his own plea agreement, once he realized an Ohio signature could be found on his codefendant's plea agreement. Intuitively, Frazier was worried his own agreement was not as good as Gould's, and he was right. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. It is irrelevant that Frazier has not faced any charges in Ohio so far, or even whether Ohio will attempt prosecution and thus truly test the enforceability of the plea agreement. The question does not hinge on whether Frazier will actually get the deal represented in the plea agreement, but rather on his implicit belief that lack of prosecution was a certainty. In this situation, "so far, so good" is not good enough. The particular circumstances of this case show that there is enough uncertainty to indicate Frazier's plea agreement was not understandingly made. The district court's decision in finding no good cause for Frazier to withdraw his plea was based on errors of fact and law, which are grounds for finding abuse of discretion. Accordingly, Frazier must be allowed to withdraw his plea.

CONCLUSION

We reverse the judgment of the district court and the decision of the Court of Appeals and remand this case to the district court for defendant Reginald Frazier to be permitted to withdraw his no contest plea.

1 JEFFREY GETTLER, District Judge, assigned.

* * *

BILES, J., concurs in the result.

1REPORTER'S NOTE: District Judge Gettler was appointed to hear case No. 117,456 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 385

State v. Corbin

No. 119,665

STATE OF KANSAS, Appellee, v. NICHOLAS CORBIN, Appellant.

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SYLLABUS BY THE COURT

APPEAL AND ERROR—Defendant with Intellectual Disability—Appel- late Review. An appellate court reviews a district court's ruling under K.S.A. 2019 Supp. 21-6622(b) (reason to believe defendant is a person with intellectual disability) for abuse of discretion. The party arguing an abuse of discretion bears the burden of establishing that abuse.

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed April 17, 2020. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the brief for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: In 2014, Nicholas Corbin pled no contest to first- degree premeditated murder. At sentencing, he argued he was a person with intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). The district court disagreed and sentenced him to a hard 25 life sentence. While Corbin appealed that decision, the 2016 Legislature amended K.S.A. 76-12b01(i), which provides new standards for deciding intellectual disability under K.S.A. 2019 Supp. 21-6622. See L. 2016, ch. 108, § 1. This court reversed the district court's ruling and remanded to reconsider Corbin's motion using the Legislature's new criteria. State v. Corbin, 305 Kan. 619, 386 P.3d 513 (2016) (Corbin I). On remand, the district court resentenced Corbin to the original mandatory term after finding again he was not a person with intellectual disability. He now appeals that second ruling, arguing the court abused its discretion. We affirm because the court's ruling was reasonably based on the law and supported by substantial competent evidence.

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State v. Corbin

FACTUAL AND PROCEDURAL BACKGROUND

The Corbin I court described this case this way:

"The facts are undisputed. Nicholas Corbin and his girlfriend, Desirah Over- turf, decided to stop feeding their infant son when he turned 2 months old. In addition to starving the baby, Corbin (1) held him upside down by his feet in a stream of water to bathe him and (2) burned his stomach with a hot baby bottle. When the couple did feed their son, Corbin held the baby’s arms behind his back. "One night Overturf noticed her son was no longer breathing and she believed him dead. Corbin put the baby in a bowl of warm water because he had become cold to the touch. He eventually called 911, and upon arrival the emergency responders pronounced the baby dead. Overturf estimated to the police that her son had been fed only 15 out of the 30 days before his death. "Corbin pled no contest to one count of premeditated first-degree murder, an off-grid person felony. Before sentencing, he filed a motion pursuant to K.S.A. 2015 Supp. 21-6622(b) and requested the court determine if he was a person with 'intellectual disability.' Per subsection (f) of the statute, such a person would not be subject to a 'mandatory term of imprisonment' as part of his or her sentence. K.S.A. 2015 Supp. 21-6622(f)." 305 Kan. at 620.

For sentencing purposes in criminal cases, state law sets out a two-step analytical process for a district court to address a defendant's claim of intellectual disability. The court must first decide whether there is sufficient reason to believe the defendant is a person with intellectual disability. If sufficient reason exists, the court must appoint medical professionals, order the defendant's examination, and conduct a full evidentiary hearing at which the defendant is entitled to present evidence and cross-examine witnesses. See K.S.A. 2019 Supp. 21-6622. Intellectual disability is defined as "having significantly subaverage general intellectual functioning, as defined by K.S.A. 76- 12b01, and amendments thereto, to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law." K.S.A. 2019 Supp. 21-6622(h). At the time of Corbin's initial sentencing, "significantly subaverage general intellectual functioning" was defined as "performance which is two or more standard deviations from the mean score on a standardized intelligence test specified by the secretary." K.S.A. 2015 Supp. 76-12b01(i).

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State v. Corbin

The court conducted a hearing on Corbin's intellectual disability motion during which it considered two presentence evalua- tions done with the parties' agreement. One prepared by Trever Patton, Ph.D., of The Therapy Center, and another by Roy Daum, Psy.D., of Larned State Hospital. At the hearing's conclusion, the court denied the motion and sentenced Corbin to a hard 25 life sentence. While Corbin's appeal was pending, the Legislature amended the statute defining "significantly subaverage general intellectual functioning" to add other ways to establish this standard beyond particular performance on standardized tests. It provided that "[s]uch standardized intelligence test shall take into account the standard error of measurement, and subaverage general intellectual functioning may be established by means in addition to standardized intellectual testing." L. 2016, ch. 108, § 1. The Legislature also explicitly provided that the amendments "shall be construed and applied retroactively." L. 2016, ch. 108, § 1. In Corbin's first appeal, this court assumed without deciding that the amendments applied retroactively, noting the retroactivity statutory language and the parties' silence as to whether it applied to Corbin's case. Corbin I, 305 Kan. at 624-25. The Corbin I court reversed the denial of the motion and remanded the case with directions to determine anew whether there was "sufficient reason to believe" Corbin "is a person with intellectual disability." K.S.A. 2019 Supp. 21-6622(b). Our court explained:

"[T]he best course is to afford the district court an opportunity to review Corbin's motion again under K.S.A. 2015 Supp. 21-6622(b)—but with a wider outlook. In that review, after again considering the reports of Drs. Patton and Daum, the court may decide to allow additional evidence." (Emphasis added.) 305 Kan. at 627.

On remand, the district court gave Corbin a chance to "present whatever additional information he has." He offered several exhibits: the existing reports prepared by Dr. Daum and Dr. Patton; reports completed by Central Kansas Mental Health Center, such as the 2009 intake assessment and treatment plan on Corbin's chronic sleeping problems, the 2006 diagnoses of his "Major De- pressive Disorder, Single Episode, Moderate Without Psychotic" 388 SUPREME COURT OF KANSAS VOL. 311

State v. Corbin and "Antisocial personality disorder," and the 2005 domestic violence evaluation showing he had "Oppositional Defiance Disor- der" and ADHD, Hyperactive/Impulsive Type"; school records showing his 2.17 GPA (11th grade) and his class rank of 169/252; and various records from his custody in the corrections system. Corbin also testified. The district court reaffirmed its earlier ruling, adopting by reference its findings from its first decision and making additional findings. It sentenced him again to a hard 25 life sentence. Its factual findings included:

"While Dr. Daum does note a mild intellectual disability range of intellectual functioning, Dr. Patton through the testing found an IQ of 95, based upon the WAIS-IV testing, which as the appellate court noted has been found to be the gold standard for determining intellectual functioning. "This Court moved to this hearing because contained in the Department of Corrections findings was a test performed in the prison system called the GAMA, standing for General Ability Measure for Adults, which indicated an estimated IQ score of 73, with a range of 83 to 69 and a classification of borderline. ". . . Though his GAMA score suggested below average intelligence, intellectual deficits were not readily apparent during this evaluation, and a consultation with Dr. Fernando indicated that none were apparent during the psychiatric evaluation either. "Therefore, this Court would also note that throughout the Department of Corrections records that the defendant's cognitive functioning and intelligence were rated as average, with very rare exception, where they might note some question as to some slight impairment, but the overwhelming majority of these reports indicate average for his intelligence and cognitive functioning. . . . "Reviewing the high school records of the defendant, indicate that . . . he quit, walked away from school, dropped out in his senior year, but at the time he dropped out he had carried a 2.17 GPA and had no history of special education classes. "And this Court . . . notes that Mr. Corbin has been able to function adequately in the prison system. He has been involved in a couple of fights, which required some staples to heal up some wounds, but had been able to function in the general population. "And note a statement contained in the report dated January 16, 2018, generated by Eva Gadberry, licensed master social worker, that . . . Weippert . . . testing interpretation indicated . . . Mr. Corbin . . . had motivation to be given intellectual disability, however functions normally, and that is this Court's view in reviewing all of these documents. It indicates that Mr. Corbin is, as noted in various documents, very self-centered, very manipulative. In the evaluation classification report . . . , the evaluator notes he may claim to be mentally fragile, but he's also very manipulative and will be a very needy inmate.

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State v. Corbin

"In reviewing these documents as a whole, this Court finds that the GAMA testing . . . does not find that sufficient to change this Court's view that the more accurate, consistent finding is that made by Dr. Patton, that the defendant is functioning at a below average mental capacity. "The issues that Mr. Corbin has displayed, with his history of anger, defiance, disruptive behavior, high conflict with his parents and other authority fig- ures are not the result of any intellectual disability, but instead of his other personality characteristics and mental health issues. "And particularly the court would find that he did not suffer from intellectual disability that substantially impaired his capacity to appreciate the criminality of conduct or to conform his conduct to the requirements of law. "He was able to live on his own, pay his bills, on track to graduate, but for his decision to leave the school and never go back. He's completed his GED since he's been in the Department of Corrections, which was one of the things that had been mentioned in Dr. Patton's evaluation, as to him not being able to focus on multiple things and so he couldn't complete a GED, but he's shown he's capable of doing that. "He clearly appreciated the seriousness and criminality of the placing the bottle on the child's stomach, and would note, despite his claim today that the officers forced him into saying that, that he did admit he set the bottle on the stomach and burned the child, and that they were afraid to take the child to the doctor because they would take away from us. Clearly he appreciated the wrong- ness of that behavior. "Also, the attempt to warm the child in water after the child had died, before the authorities were even called to deal with . . . his dead son, [the] Court believes the facts in this case more than adequately show that Mr. Corbin's intellectual abilities were not impaired to the point he could not appreciate the criminality of his conduct or, even given his own testimony here today, that he was incapable of conforming his conduct to the requirement of law. "He is impulsive, he is self-centered, he is manipulative, but he is not intellectually impaired in this court's—actually disabled in this Court's view, as defined by the statute as amended by the legislature. "This court finds that the sentence as imposed originally should remain, the 25 year minimum to life, that it is an appropriate sentence, based upon the hor- rific treatment of this three-month-old baby, who was totally dependent upon his parents for his care, and they neglected and chose to starve this baby to death. . . . The Court believes its sentence originally was correct and reaffirms that sentence at this time."

Corbin appealed this second denial of his motion. Jurisdiction is proper. See K.S.A. 2019 Supp. 22-3601(b) (cases permitted to be directly taken to Supreme Court); K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2019 Supp. 22-3601).

390 SUPREME COURT OF KANSAS VOL. 311

State v. Corbin

STANDARD OF REVIEW

The State points out some ambiguity in the district court's approach on remand. It suggests that by permitting Corbin to present his additional evidence the district court appeared to skip the threshold determination whether there was sufficient reason to believe Corbin is a person with intellectual disability. See K.S.A. 2019 Supp. 21-6622(b) and (c). The State's view is reinforced somewhat by the district court casting its ruling in terms of whether Corbin was impaired, even though it also stated it was reaffirming its previous ruling that there was no reason to believe Corbin was impaired under subsection (b). We briefly consider this first. We believe the district court's decision should be reviewed as a subsection (b) "reason to believe" determination. We note our mandate directed the district court to review Corbin's motion again under subsection (b) using the Legislature's revised criteria, and invited it to allow additional evidence as part of that review. Corbin I, 305 Kan. at 627. And we observe the district court did not appoint experts as would have been required for a subsection (c) hearing. An abuse of discretion standard applies when reviewing a district court's reason-to-believe ruling under K.S.A. 2019 Supp. 21- 6622(b). A court abuses its discretion when its action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequi- site conclusion of law or the exercise of discretion is based. The party arguing an abuse of discretion bears the burden of establishing that abuse. Corbin I, 305 Kan. at 622.

DISCUSSION

One month after the district court ruled on Corbin's motion on remand, this court released State v. Thurber, 308 Kan. 140, 420 P.3d 389 (2018), holding that a portion of the statute's "intellectual disability" definition as provided in K.S.A. 2019 Supp. 21- VOL. 311 SUPREME COURT OF KANSAS 391

State v. Corbin

6622(h) violated the Eighth Amendment to the United States Con- stitution. The Thurber court announced,

"In death penalty cases, the restriction in K.S.A. 2015 Supp. 21-6622(h) limiting the class of intellectually disabled persons qualifying for protection against execution to only those having significantly subaverage general intellectual functioning 'to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law' violates the Eighth Amendment to the United States Consti- tution." (Emphasis added.) Thurber, 308 Kan. 140, Syl. ¶ 17.

The Thurber court held the incapacity language that is high- lighted above was severable from the remainder of the statute in death penalty cases such as Thurber's. 308 Kan. at 231. It is obvious the district court in Corbin's case based its denial of his motion on the same statutory incapacity language. But we need not consider Thurber's implications, if any, because Corbin did not argue its holding should be extended outside the death penalty context. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019) ("Issues not adequately briefed are deemed waived or abandoned."); State v. Pewenofkit, 307 Kan. 730, Syl. ¶ 2, 415 P.3d 398 (2018) ("[A] point raised incidentally in a brief and not argued therein is also deemed abandoned."). Corbin advances a straightforward abuse of discretion argument based on his assertion that the district court erred in analyzing the facts. Moving to the merits, Corbin claims "there was substantial evidence that [he] met the statutory definition of a person with an intellectual disability." He points to: (1) Dr. Daum's report that Corbin "demonstrated evidence of limited intellectual and adap- tive behavior functioning"; (2) Dr. Patton's finding that Corbin's "profile on a robust nonverbal measure of executive function (that is generally sensitive to AD/HD symptoms) is primarily in the borderline impaired to extremely impaired range. His profile clearly exhibits significant problems with executive functioning," specifically "with novel problem-solving, organization, tracking, and attention"; and (3) his own testimony that when he was in school, he usually took easy classes, teachers passed him if he tried, and he eventually dropped out. But this does not warrant reversal. While Dr. Daum stated Corbin "demonstrated evidence of limited intellectual and adap- tive behavior functioning," he also noted Corbin's intellectual 392 SUPREME COURT OF KANSAS VOL. 311

State v. Corbin functioning was within the moderately below average scale. Sim- ilarly, Dr. Patton suggested Corbin's cognitive ability was at the lower end of the average range. And while Corbin testified he took easy classes and eventually dropped out of school, in view of the entire record those facts do not supply sufficient reason to believe he is a person with intellectual disability. The district court's decision explains its rationale with numerous references to portions of the record contrary to Corbin's arguments.

We hold the district court did not abuse its discretion when it rejected Corbin's motion and imposed a mandatory term of imprisonment.

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,665 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 393

State v. Uk

No. 119,712

STATE OF KANSAS, Appellee, v. SONY UK, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Jury Instruction for Voluntary Manslaughter Not Appropriate Without Evidence of Provocation. The mere existence of a "sudden quarrel" immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate.

2. SAME—When Jury Instruction for Voluntary Manslaughter Appropriate. When the evidence shows the existence of a "sudden quarrel" or "heat of passion," the trial court performs a limited gatekeeping function to determine whether the degree of such quarrel or passion, when viewed in a light most favorable to the defense, is objectively sufficient, such that an instruction for voluntary manslaughter is factually appropriate.

3. CRIMINAL LAW—Sudden Quarrel and Heat of Passion Not Separate Concepts under Voluntary Manslaughter. The concepts of "sudden quarrel" and "heat of passion," as used in the statutory definition of voluntary manslaughter, are not separate concepts.

4. SAME—PIK Definition of Premeditation. PIK Crim. 4th 54.150(d) (2018 Supp.) accurately defines premeditation and adequately distinguishes premeditated intentional conduct from nonpremeditated intentional conduct.

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed April 17, 2020. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Amy L. Aranda, first assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Sony Uk challenges his conviction for first-degree premeditated murder in the killing of Mahogany Brooks. Finding no error, we affirm.

394 SUPREME COURT OF KANSAS VOL. 311

State v. Uk

FACTS

On the evening of March 9, 2017, a number of people saw Uk riding through the streets of Emporia on a bicycle while carrying a shotgun. Uk parked his bike at an apartment building and carried his shotgun inside. Residents of the apartment building knew Uk to be associated with Mahogany Brooks, who lived in the building. Shortly before 9:51 p.m., the sound of shotgun fire echoed through the apartment building. Several witnesses described hearing between four and eight shots, noting a pause between the first set of shots and the final two. During this pause, residents heard the sound of someone running, the sound of someone hitting a door and falling to the ground, and a woman's voice calling for help. The most dramatic accounts of the shooting came from residents Tyler Smith and Chris Mosby, who at first heard "[s]ome hollering and what [they] thought was slamming or loud bangs going on" in the apartment hallway. According to Smith, "[He and Mosby] had a pretty good idea that it was [Uk] and [Brooks] arguing. [Brooks] would get drunk and they would argue." This incident, however, "seemed like it was a little more out of hand than usual." Smith heard two loud noises, slightly spaced apart, which he believed to be the product of a door being slammed. Then, after they heard someone screaming in the hallway, Mosby and Smith looked out into the hallway. Mosby thought he could hear a female voice calling for help but wasn't certain. At that point, they heard another "loud bang[,]" which Smith had now determined to be a gunshot. Mosby stepped into the hallway to see "someone holding a shotgun and someone laying on the floor." Mosby recognized the man with the shotgun as Uk. Mosby quickly retreated inside his apartment and called 911. Mosby had heard three shots before he stepped out into the hall, then one more after he retreated back inside his apartment. Through the gun smoke that filled the hallway, Smith—who looked out after Mosby stepped back inside the apartment—saw the silhouette of a shotgun-wielding man standing over the body VOL. 311 SUPREME COURT OF KANSAS 395

State v. Uk of a woman on the floor of the hallway. Smith heard another gunshot and saw "the flash of the fire" coming out of the shotgun's barrel, which was pointed at the body on the floor. As the man turned toward him, Smith also retreated into his apartment and locked the door. Police responded to the apartment building within minutes. Shortly after arriving, officers spotted Uk leaving Brooks' apartment. Uk retreated into the apartment when the officers com- manded him to halt. After 45 minutes to an hour, the police finally convinced Uk to come out of the apartment. Uk had blood on his shirt and his shoe, the latter of which was later determined to be Brooks'. As they swept the building, officers spotted a deceased individual—Brooks—lying in the second floor hallway. Brooks had suffered wounds from multiple close-range shotgun blasts. A later autopsy revealed that Brooks was alive when she received all but one of them. All but one of Brooks' distinctly identifiable wounds likely would have been individually fatal. The hallway presented a grim picture. The walls were stained with blood and "other human matter," and several spent shotgun shell casings littered the floor. The first bloodstain appeared 17 feet beyond the threshold of Brooks' apartment, and the blood- stains increased with size and frequency in the direction of Brooks' body. Brooks' body lay in the hallway, approximately 60 feet away from her apartment. Two spent shotgun shells were beside Brooks' body, along with two additional spent shells further down the hallway in the direction of Brooks' apartment. All four shell casings were found between the first blood spatter and the place where Brooks' body lay. Inside Brooks' apartment, officers recovered a total of seven unspent shotgun shells that were the same size as the spent shells, along with a spent shell inside the doorway to the bedroom. Other than the presence of a spent shotgun shell, there were no obvious signs of a struggle. Officers also found a Mossberg Maverick shotgun hidden beneath a mattress. A spent shell was still inside the shotgun, but otherwise the gun was empty. The shotgun's serial number matched that of a weapon Uk had bought online several weeks before, which had been transferred to Uk on January 19, 396 SUPREME COURT OF KANSAS VOL. 311

State v. Uk

2017. Uk had also purchased several shotgun shells of the same size and brand as those that were recovered from the apartment building. Thus, altogether, investigators found a total of six spent shotgun shell casings: four in the hallway (including the two near Brooks' body), one in the doorway to Brooks' bedroom, and one in the shotgun itself. The State charged Uk with first-degree premeditated murder. The case ultimately went to a jury trial. At the jury instruction conference near the end of the trial, Uk's counsel asked for a voluntary manslaughter instruction, asserting that a jury could conclude that Uk and Brooks had gotten into an altercation prior to Brooks' death. The district court rejected Uk's requested voluntary manslaughter instruction over the objection of Uk's counsel, finding no evidence of legally sufficient provocation. But Uk's counsel did not object to Instruction No. 11, which contained the definition of "premeditation" and mirrored PIK Crim. 4th 54.150(d) (2018 Supp.). The district court then instructed the jury on first-degree premeditated murder and intentional second-degree murder as a lesser included offense. The jury ultimately convicted Uk of premeditated first-degree murder. Uk timely appeals.

ANALYSIS

Uk raises two issues. He first claims the district court erred in refusing to give the jury a requested instruction on voluntary manslaughter as a lesser included offense of first-degree murder. He also argues the district court committed clear error in issuing an unmodified version of the PIK instruction on premeditation. Nei- ther claim is persuasive.

A voluntary manslaughter instruction was not factually appropriate.

When presented with a claim that a district court has committed an error by refusing to issue a jury instruction:

"(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine VOL. 311 SUPREME COURT OF KANSAS 397

State v. Uk whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in Ward[, 292 Kan. at 565]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

"The first element of this analysis ultimately affects the last one 'in that whether a party has preserved an issue for review will have an impact on the standard by which we determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726 (2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). Because Uk's trial counsel objected to the district court's refusal to give a voluntary manslaughter instruction, the harmlessness standard set forth in Ward—rather than clear error— applies. See Barber, 302 Kan. at 377. And because a district court's refusal to give a requested lesser included offense instruction does not violate a defendant's constitutional right, "the error is reversible only if we determine that there is a 'reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.'" Plummer, 295 Kan. at 168 (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011]). All parties agree that voluntary manslaughter under K.S.A. 2019 Supp. 21-5404 is a lesser included offense of premeditated first-degree murder, as set forth in K.S.A. 2019 Supp. 21- 5402(a)(1). Thus, the requested instruction was legally appropriate. See, e.g., State v. Brownlee, 302 Kan. 491, 512, 354 P.3d 525 (2015). The question, then, is whether the instruction would have been factually appropriate. Generally, "'lesser included offense instructions must be given when there is some evidence, [viewed in a light most favorable to the defendant,] emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime.'" State v. Gen- try, 310 Kan. 715, 722, 449 P.3d 429 (2019) (quoting State v. Haygood, 308 Kan. 1387, 1408, 430 P.3d 11 [2018]). However, when evaluating the factual appropriateness of a voluntary manslaughter instruction, courts consider whether there was "'an adequate provocation that deprives a reasonable person of self-control 398 SUPREME COURT OF KANSAS VOL. 311

State v. Uk and causes that person to act out of passion rather than reason.'" Gentry, 310 Kan. at 722 (quoting State v. Bernhardt, 304 Kan. 460, 475-76, 372 P.3d 1161 [2016]). Under this framework, "'Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of voluntary manslaughter.'" 310 Kan. at 722 (quoting Bernhardt, 304 Kan. at 475-76). Additionally, "Whether provocation was legally sufficient is based on an objective standard." 310 Kan. at 723. Uk raises two alternative theories to support his claim of error in the court's refusal to give a voluntary manslaughter instruction. First, he argues that it was improper for the district court to evaluate the degree of the quarrel, as opposed to its existence. Uk emphasizes the testimony of witnesses who heard the sounds of an argument immediately before the shooting began, asserting that it was the jury's responsibility to determine whether the argument was of sufficient intensity to warrant a voluntary manslaughter conviction. Uk's argument is not persuasive. Our analysis of the legal sufficiency of provocation is nested within the overall question of factual appropriateness. See State v. Hilt, 299 Kan. 176, 195, 322 P.3d 367 (2014) ("But, even when this evidence is viewed in a light most favorable to Hilt, it simply does not support the development or existence of a sudden quarrel . . . much less one that could have caused an ordinary man to lose control of his actions and his reason."). In other words, while the district court employs a gatekeeper function, it is limited to determining whether a purported incident—the existence of which is evaluated in a light most favorable to the defendant—rises to the objective legal threshold of sufficient provocation. Here, evidence of a quarrel was limited to the testimony that Uk and Brooks sounded as though they were arguing immediately before the shooting. The testimony implied that it was not unusual for Brooks and Uk to argue, and this court has considered the re- curring nature of an argument as tending to "negate the 'sudden' aspect of sudden quarrel; the argument did not happen 'without warning' and was foreseeable." Bernhardt, 304 Kan. at 477. Based on the absence of any evidence as to the adequacy of provocation preceding the shooting, the district court did not err VOL. 311 SUPREME COURT OF KANSAS 399

State v. Uk in exercising its gatekeeping role. In order to conclude that legally sufficient provocation existed, we would have to infer that the un- known nature of the alleged argument was objectively sufficient to cause Uk to lose all reason and shoot Brooks multiple times— including at least once, and perhaps twice, when she was helpless on the ground—while following her for more than 60 feet down a hallway, during which time she was crying out for help. Even viewing the evidence in a light most favorable to Uk, this inference is not viable. See State v. Northcutt, 290 Kan. 224, 234, 224 P.3d 564 (2010) ("Because there is no evidence of provocation by [the defendant], much less severe provocation, the trial court was not required to instruct the jury on voluntary manslaughter."); see also Bernhardt, 304 Kan. at 477 (a slap did not constitute legally sufficient provocation for defendant's "later, coldly callous behavior"); State v. Gallegos, 286 Kan. 869, 874-75, 190 P.3d 226 (2008) (victim shot five times after telling defendant to calm down). Thus the district court did not err in finding a requested instruction on voluntary manslaughter to be factually inappropriate. Second, Uk argues that Kansas caselaw has erroneously con- flated the separate statutory elements of "sudden quarrel" with "heat of passion," claiming that the adequacy of provocation is irrelevant when a "sudden quarrel" is at issue. Uk's argument essentially asks the court to overturn more than four decades of precedent on this point. See State v. Coop, 223 Kan. 302, 305-07, 573 P.2d 1017 (1978). In Coop, after examining the law of several other jurisdictions, the court wrote:

"Sudden quarrel is one form of provocation for 'heat of passion' and is not separate and apart from 'heat of passion.' The provocation whether it be 'sudden quarrel' or some other form of provocation must be sufficient to cause an ordinary man to lose control of his actions and his reason." Coop, 223 Kan. at 307.

Although we are not inextricably bound by our own precedent, "[w]e do not overrule precedent lightly and must give full consideration to the doctrine of stare decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016). Yet as Uk notes, one previous opinion observed that the language of the voluntary manslaughter statute "suggests that 'a sudden quarrel' and 'in the heat 400 SUPREME COURT OF KANSAS VOL. 311

State v. Uk of passion' are two separate concepts," although that opinion ultimately went on to reiterate the reasoning set forth in Coop. State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012). Subsequent cases have also relied on Coop's reasoning for this point. See, e.g., State v. Story, 300 Kan. 702, 711, 334 P.3d 297 (2014). Notwithstanding the Wade court's observation, we decline to overrule Coop. If accepted, Uk's position would essentially require a voluntary manslaughter instruction whenever an argument precedes a killing, regardless of the origin, nature, or degree of the argument. Without the limiting principle of legally sufficient provocation, the crime of voluntary manslaughter could be factually indistinguishable from the crime of second-degree murder in cases involving a homicide during an argument. See, e.g., State v. Stafford, 213 Kan. 152, 166, 515 P.2d 769 (1973) ("[A]n intentional homicide committed upon a sudden quarrel or in the heat of passion engendered by adequate provocation, and not the result of malice conceived before the provocation, is voluntary manslaughter. Suffice it to say further, although there was some evidence of prior quarreling and even of a blow being struck by the decedent, we believe insufficient provocation existed to reduce to voluntary manslaughter the eventual strangulation of one flat on his back in a disabled condition. [Citation omitted.]"), reh'g denied and opinion modified, 213 Kan. 585, 518 P.2d 136 (1974). Accordingly, as the evidence in this case did not establish legally sufficient provocation, we find no error in the district court's decision not to instruct the jury on voluntary manslaughter. Be- cause we find no error, we need not address the harmlessness of the district court's decision.

The district court did not err in defining premeditation for the jury.

Uk next claims the district court's jury Instruction No. 11 did not sufficiently define the concept of "premeditation." Our standard of review follows the same framework as in the preceding issue. However, since Uk did not object to Instruction No. 11, our assessment of harmlessness—should we reach it—instead involves

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"the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under that standard, an appellate court assesses whether it is 'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.' Williams has the burden to establish reversibility, and in examining whether he has met that burden we make a de novo determination based on the entire record. [Citations omitted.]" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).

Uk's argument implicates the legal appropriateness of Instruc- tion No. 11, which mirrored the text set forth in PIK Crim. 4th 54.150(d); he raises no challenge to the instruction's factual appropriateness. Instruction No. 11 stated:

"Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life."

Uk claims Instruction No. 11 left the jury unable to distinguish between premeditated (first-degree) murder and intentional (second-degree) murder. To support his claim, Uk relies largely on an early Kansas case's definition of premeditation that involved the phrase, "plan, contrive or scheme beforehand." Craft v. The State of Kansas, 3 Kan. 450, 483 (1866). He argues that, without this language, Instruction No. 11 could not be distinguished from the statutory definition of intent, i.e., "when it is such person's conscious objective or desire to engage in the conduct or cause the result." K.S.A. 2019 Supp. 21-5202(h). The court has previously expressed strong general support for the use of PIK instructions by district courts. See, e.g., State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). The ultimate goal of any jury instruction is effective communication. That goal is achieved through words given and understood in context. Though the words "intent" and "intentional" are both used within the two sentences comprising Instruction No. 11, the meaning of those two words is communicated within the context of the other words that are also used. Those other words leave no doubt that "premeditation"—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself. Thus, the instruction fairly and clearly sets forth the law, and no 402 SUPREME COURT OF KANSAS VOL. 311

State v. Uk reasonable jury would have trouble distinguishing the conduct described by Instruction No. 11 from the statutory definition of intentional conduct set forth in K.S.A. 2019 Supp. 21-5202(h). We thus find Instruction No. 11 to be legally appropriate. Lacking a challenge to its factual appropriateness, we find no error—let alone clear error—in the district court's decision to issue an essentially unmodified PIK instruction on the definition of premeditation. Accordingly, we need not address harmlessness.

CONCLUSION

Uk's conviction for first-degree premeditated murder is affirmed.

PATRICK D. MCANANY, Senior Judge, assigned. 1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 119,712 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 403

State v. Thomas

No. 116,111

STATE OF KANSAS, Appellant, v. FREDDIE ALEC THOMAS, Appellee.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Probable Cause Standard for Statutory Immunity from Criminal Prosecution—Burden of Proof on State. Probable cause is the standard used to decide whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, which is the statute broadly encompassing justifications for using force to defend people or property. The State bears the burden to establish probable cause that defendant's use of force was not statutorily justified when a defendant invokes the statute.

2. SAME—State Establishes Probable Cause to Defeat Motion for Immunity. For purposes of K.S.A. 2019 Supp. 21-5231, the State establishes the probable cause necessary to defeat a pretrial motion for immunity if the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt despite the defendant's claim of justified use-of-force immunity.

3. SAME—Motion for Immunity from Criminal Prosecution—Determination by District Court. To decide a defendant's motion for immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State carried its burden to establish probable cause that defendant's use of force was not statutorily justified.

4. SAME—Motion for Immunity from Criminal Prosecution—Court's Proba- ble Cause Determination. A district court's probable cause determination under K.S.A. 2019 Supp. 21-5231 must be premised on: (a) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (b) the reasonable inferences to be drawn from any stipulations or the evidence.

5. SAME—Motion for Immunity from Criminal Prosecution—District Court's Con- clusions Must Be Supported by Factual Findings. The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings.

404 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

6. SAME—Motion for Immunity—State Must Establish Probable Cause Use of Force Not Justified. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant's use of force was not justified in accordance with K.S.A. 2019 Supp. 21-5222 under either or both of two scenarios: (a) the defendant did not honestly believe the use of force was necessary under the circumstances, or (b) a reasonable person would not believe the use of force was necessary under the circumstances.

7. SAME—To Defeat Motion for Immunity— State Must Establish Probable Defendant was Engaged in Forcible Felony or Initially Provoked Use of Force. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226(b) or (c).

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 8, 2017. Appeal from Barton District Court; RON SVATY, judge. Opinion filed April 24, 2020. Judgment of the Court of Appeals reversing the district court and remanding the case is affirmed. Judgment of the district court is reversed and the case is remanded with directions.

Douglas A. Matthews, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellant.

Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Freddie Alec Thomas shot and killed an unarmed man during an incident outside that man's residence. The State charged Thomas with first-degree murder. The district court granted Thomas' pretrial motion to dismiss based on self-defense immunity. A Court of Appeals panel reversed and remanded the case for another evidentiary hearing after concluding the district court failed to make sufficient findings of fact and conclusions of law. State v. Thomas, No. 116,111, 2017 WL 6064660, at *13-14 (Kan. App. 2017) (unpublished opinion). Thomas challenges the panel's judgment. We affirm the panel.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas and his girlfriend, Sherry Muro, visited Muro's daughter, Marissa Reynolds, at Reynolds' home. At one time VOL. 311 SUPREME COURT OF KANSAS 405

State v. Thomas

Muro lived at the house with her previous boyfriend, Jeremy Sal- dana, but she had since moved out. Muro did not know Saldana continued to live there. Saldana did not care to see Muro or Thomas, so he left before they arrived. Later that evening, Saldana texted Reynolds to see if she could ask the couple to leave so he could come home. Reyn- olds asked her mother and Thomas to leave. Muro was shocked to learn Saldana was still living with her daughter. Muro testified her daughter "told me that she was texting [Saldana], that he was over in the park and that he was going to come and start some shit with Mr. Thomas." Thomas had heard about Saldana from Muro but had never met him. Reynolds said Thomas was "a little upset." Thomas worked at the Ellsworth Correctional Facility and always carried a nine-millimeter handgun on his person, including that night. After learning Saldana was returning, Thomas went to his truck and put on the ballistic vest he wore at work. It is undisputed Thomas and Saldana confronted each other shortly after that. Thomas killed Saldana by shooting him three times. Witness accounts conflicted about what happened. The State charged Thomas with first-degree premeditated murder under K.S.A. 2019 Supp. 21-5402(a)(1). After the preliminary hearing, Thomas moved to dismiss based on self-defense immunity under K.S.A. 2019 Supp. 21-5231. In response, the State argued Thomas did not qualify for statutory immunity because his use of deadly force was not justified under K.S.A. 2019 Supp. 21-5222 and because Thomas was the initial aggressor under K.S.A. 2019 Supp. 21-5226. At an evidentiary hearing on the immunity claim, Detective Sergeant David Paden from the Barton County Sheriff's Office testified about his two interviews with Thomas. Reynolds and Muro also testified. The district court admitted the autopsy report into evidence. Thomas did not testify. According to Paden, Thomas said he believed from conversa- tions with Muro that Saldana was a violent man who typically carried weapons. Thomas said he was standing by his truck when Saldana walked up. Someone said, "[H]ere he is, look at him, look at him," and when Thomas turned, Saldana was in front of him. 406 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

Thomas asked Saldana, "What's the problem?" Saldana gave an unintelligible response but "kept coming at" Thomas. Thomas told Paden he performed what he described as a "clearing maneuver," which is taught in law enforcement training as a self-defense technique to separate an officer from an assailant. He said there was no scuffle or fight aside from that. Thomas said he fired the first shot by accident. He explained the second and third shots by claiming he felt threatened because Saldana "kept coming at him." He suggested he was concerned about his safety and the safety of others. He said he did not know if Saldana would go inside the house or do anything to anyone else. Thomas acknowledged he never saw Saldana with a weapon. On cross-examination, defense counsel asked Paden if it would "be objectively unreasonable at that point if somebody was coming at you to pull your weapon and fire it?" Paden responded, "Depending on the circumstances. There's a lot of things you have to take into consideration. The size of the person, their demeanor. It just kind of depends. I couldn't say one way or another for sure what one officer might find life threatening and another one might not." In redirect, the following exchange occurred with the prosecutor:

"Q. [Prosecutor:] . . . [T]aking into consideration what you have already spoken about regarding training and experience, what does your training tell you about the employment of deadly force against somebody who is perhaps just using force? "A. [Paden:] Like I said, you have to take the whole situation at hand. I don't know that drawing his weapon was a wrong act. The information that he had had before with the fact that Saldana was a violent man, always carried a weapon, you have to take that into consideration. I don't know that him drawing the weapon was a wrong act. "Q. [Prosecutor:] What about firing the weapon? "A. [Paden:] That I said that was kind of have to be—I would have to be there in that situation to determine whether I would fire or not."

Reynolds described the incident at her home differently. She testified Thomas "was asking what [Saldana] looked like" before Thomas and Muro got into Thomas' truck to leave. And when Sal- dana appeared, Thomas turned the truck engine off. He then left the vehicle to walk over and "cut [Saldana] off" as Saldana walked VOL. 311 SUPREME COURT OF KANSAS 407

State v. Thomas through the yard. Their conversation, according to Reynolds, was Thomas asking Saldana, "Do you have a beef with me?" before grabbing Saldana by the throat. She testified Saldana "tried to get away but could not do so. . . . He was trying to shove Mr. Thomas away so that he could get away." Saldana violently swung Thomas around before Thomas stepped back and shot Saldana three times. Muro testified she had harsh words with Saldana at some point before the incident. She said, "Mr. Saldana had threatened me that I was nothing but a dirty nigger lover, and that's all I said to [Thomas]." Muro told Thomas about threats Saldana made about Thomas: "[Saldana] said he was going to kick [Thomas'] black ass." As for the shooting, Muro said she and Thomas were never both in the vehicle with the key in the ignition and never drove away. In her version, Thomas stood by the house's porch—not by his truck—when Saldana confronted him. She said Saldana pushed Thomas before asking, "[Y]ou got a fucking problem with me?" Thomas replied, "I don't even know you." Muro testified she stepped between them to try to stop a fight. But Saldana "kept coming," at which point Thomas drew his gun and fired. Muro said the gunshots caused her ears to ring because she was "almost beside" Thomas when he fired. Muro's perception was that Sal- dana continued moving toward Thomas aggressively after the first shot and Thomas continued firing. Dr. Lyle Noordhoek performed the autopsy. His report showed Saldana suffered two gunshot wounds to the chest and another near the left ear. And based on the wounds' locations and paths through Saldana's body, he concluded Saldana appeared to have been moving forward at the time of the second shot and was leaned forward at the time of the third. When the hearing ended, the district court made no distinct factual findings. It simply held the State did not meet its burden to show probable cause that self-defense immunity did not apply and dismissed the complaint. The court reasoned,

"I think this is a pretty hard burden for the State in any case to do probable cause, but I think in this case, it was especially hard, because contrary to the State's argument that putting on a vest is somehow an affirmative action for going after somebody, in this case particularly, it showed that the defendant was—sincerely and honestly believed the use of deadly force was necessary because he had a 408 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas gun on from the time he went to visit his wife's—or his girlfriend's family. He wore it all the time. The only thing he goes to the car for is the bulletproof vest, which is not an affirmative action to go do something to somebody else. It's an action to defend yourself. Now so the subjective test I don't think the State could overcome. "Frankly, as I was listening to the evidence, I thought, well, the State's going to be able to prove the second issue or at least on probable cause the second part of the test is objective and requires a showing that a reasonable person in the defendant's circumstances would have perceived the use of deadly force was necessary to defend himself, and I was—all along, until the last State's witness, I was getting ready—I hadn't heard anything that would indicate that they hadn't met that, but then Officer David Paden's testimony on direct examination by the State's attorney said he was of the opinion that, at the time, the defendant was justified in drawing his weapon. That was his direct testimony. If you're justified in drawing your weapon, that's an objective test. That's what the officer—that's what a police officer thought, the police officer that investigated the case. Well, if he's justified in drawing his weapon, an objective person would think that he's justified in firing it, because if you're justified in drawing it, you're justified in using it. That's the reason I'm granting it. I might get overturned. I probably will. I don't know. This is a strange statute."

The State timely appealed. A Court of Appeals panel reversed and remanded for a rehearing, noting the judge who presided over the first hearing had retired. Thomas, 2017 WL 6064660, at *13- 14 ("Under these unique circumstances, and given the fact-intensive inquiry of self-defense immunity motions, and the im- portance of credibility determinations in fact-finding, the district judge assigned [to] this case shall conduct another evidentiary hearing on Thomas' motion, and make the requisite findings of fact and conclusions of law."). This court granted Thomas' timely petition for review. Juris- diction is proper. See K.S.A. 20-3018(b) (providing for petition for review of Court of Appeals decision); K.S.A. 60-2101(b) (Su- preme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

SELF-DEFENSE IMMUNITY

Thomas argues the State failed to establish probable cause that the use of deadly force was not justified and claims the panel simply did not accept that legal reality. But the panel's decision is more nuanced. It held the district court did not do what it was sup- VOL. 311 SUPREME COURT OF KANSAS 409

State v. Thomas posed to do: decide the case by considering the totality of the circumstances, weighing the evidence without deference to the State, and then determining if the State met its burden to establish probable cause. Thomas, 2017 WL 6064660, at *5-8 ("At the outset, our review of the district court's ruling at the conclusion of the evidence and later filed journal entry, reveals the district court made no findings regarding any of the facts presented at the evidentiary hearing."). This failure was especially acute in the panel's view with the State's assertion that Thomas initially provoked the use of force against himself. The panel noted considerable disputed evidence it believed was critical to a proper resolution of the self-defense issue that was not judicially determined. It remanded the case for compliance with Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221). That rule imposes on the district court the primary duty to provide adequate findings of fact and conclusions of law on the record to explain the court's decision on contested matters. Thomas, 2017 WL 6064660, at *8-9. As it comes to us, this case presents not only a fact-intensive self-defense question, but an opportunity to better describe a district court's role in deciding these complex immunity claims before trial. And the specific question here is whether the district court did enough to permit appellate review of the applicable self- defense probable cause determinations. That review applies a bifurcated standard in which factual findings arising from disputed evidence are reviewed for substantial competent evidence, and the ultimate legal conclusion drawn from those facts is reviewed de novo. State v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30 (2017). In this case, that standard of appellate review applies to the parties' arguments advanced under both K.S.A. 2019 Supp. 21-5231 (immunity) and K.S.A. 2019 Supp. 21-5226 (initial provocation). In State v. Collins, 311 Kan. 421, 461 P.3d 828 (2020), we explained:

"The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings." Syl. ¶ 5. 410 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

We begin with the applicable law. The immunity statute, K.S.A. 2019 Supp. 21-5231, provides:

"(a) A person who uses force which, subject to the provisions of K.S.A. 2019 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2019 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, 'criminal prosecution' includes arrest, detention in custody and charging or prosecution of the defendant. . . . . "(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause."

The statutory justification in Thomas' case is set out in K.S.A. 2019 Supp. 21-5222:

"(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force. "(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. "(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person."

Our initial focus is on subsection (b) because it extends the self-defense justification in subsection (a) to circumstances in which a person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to that person or a third person. This is what Thomas claims happened. In a case involving the use of deadly force in defense of a person, there is a two-prong test to determine if the defendant's conduct was justified under the self-defense statute. The first is subjective. It requires a showing that the defendant sincerely believed it was necessary to kill to prevent imminent death or great bodily harm to the defendant or a third person. The second is objective and requires a showing that a reasonable person in the defendant's circumstances would have perceived the use of deadly force in VOL. 311 SUPREME COURT OF KANSAS 411

State v. Thomas self-defense as necessary to prevent imminent death or great bodily harm to the defendant or a third person. State v. Macomber, 309 Kan. 907, 916-17, 441 P.3d 479 (2019). Also pertinent are K.S.A. 2019 Supp. 21-5226(b) and (c). These subsections provide that a self-defense justification is unavailable to a person who:

"(b) initially provokes the use of any force against such person or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or "(c) otherwise initially provokes the use of any force against such person or another, unless: (1) Such person has reasonable grounds to believe that such person is in imminent danger of death or great bodily harm, and has exhausted every reasonable means to escape such danger other than the use of deadly force; or (2) in good faith, such person withdraws from physical contact with the assailant and indicates clearly to the assailant that such person desires to withdraw and terminate the use of such force, but the assailant continues or resumes the use of such force."

Both subsections (b) and (c) articulate separate grounds for denying self-defense immunity when a person "initially provokes the use of any force against such person or another." Subsection (b) requires the additional element that the initial provocation be done "with intent to use such force as an excuse to inflict bodily harm upon the assailant." Subsection (c) contains a retreat "safe harbor" available to an initial aggressor who lacks the additional element required in subsection (b). See State v. Beltz, 305 Kan. 773, 781-82, 388 P.3d 93 (2017) (determining "the retreat safe harbor exceptions . . . are only available to a defendant falling under subsection [c]"). Thomas does not claim the retreat safe harbor exceptions under subsection (c) apply, so our issue here is based only on subsection (b). This means the district court needed to decide as a part of its self-defense immunity ruling whether the State established probable cause for the two elements required by K.S.A. 2019 Supp. 21-5226(b): (1) Thomas initially provoked the use of force against himself, and (2) he did so with the intent to use such force as an excuse to inflict bodily harm on Saldana. And if the State showed probable cause that Thomas was not justified in killing Saldana because he initially provoked the violence as set out in 412 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas subsection (b), it would not be necessary to consider the two-part subjective and objective test under K.S.A. 2019 Supp. 21-5222. See State v. Salary, 301 Kan. 586, 594, 343 P.3d 1165 (2015) (jury instruction case; addressing application of K.S.A. 21-3214(3) [now at K.S.A. 2019 Supp. 21-5226(c)] first before conducting the two-prong test under the self-defense statute because subsection [3]'s operation was "dispositive"). In Hardy, we noted the self-defense statutory scheme confers a "true immunity" for those who qualify. This, the Hardy court continued, means the law carries with it "the necessity of a procedural gatekeeping function, typically exercised by a detached magistrate, who will prevent certain cases from ever getting to a trial and a jury." 305 Kan. at 1010. And that gatekeeping is triggered by a defendant's pretrial motion to invoke immunity under K.S.A. 2019 Supp. 21-5231. Such motions impose on the State the burden to come forward with probable cause to show defendant's use of force was not statutorily justified. Hardy, 305 Kan. at 1011. To meet its probable cause burden under K.S.A. 2019 Supp. 21-5231, the State may establish that an ordinarily prudent and cautious person could reasonably believe defendant's use of force was not justified under either or both of two scenarios: (1) the defendant did not honestly believe the use of force was necessary under the circumstances, or (2) a reasonable person would not believe the use of force was necessary under the circumstances. See K.S.A. 2019 Supp. 21- 5222. And in Thomas' case, another way to defeat his immunity motion would be to demonstrate, as the State tries to do here, probable cause that the use of force was not justified because Thomas initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226. See Collins, 311 Kan. at 436 (holding self-defense immunity unavailable to defendant when facts as found by the district court demonstrated probable cause to believe defendant was engaged in a forcible felony). The State's probable cause burden required by K.S.A. 2019 Supp. 21-5231 is substantially less than the proof beyond a reasonable doubt required to obtain a guilty verdict. Probable cause simply means that the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously VOL. 311 SUPREME COURT OF KANSAS 413

State v. Thomas entertain a reasonable belief of defendant's guilt despite the defendant's claim of justified use-of-force immunity. See Collins, 311 Kan. at 429; Hardy, 305 Kan. at 1011 (holding State must establish probable cause that use of force was not statutorily justified to overcome motion for immunity under K.S.A. 2016 Supp. 21-5231); State v. Ultreras, 296 Kan. 828, 846, 295 P.3d 1020 (2013) (holding State defeated immunity motion because it "offered evidence sufficient for a person of 'ordinary prudence and caution to conscientiously entertain a reasonable belief' of [defendant's] guilt despite his claim of justified use-of-force immunity"); State v. Washington, 293 Kan. 732, 733-34, 268 P.3d 475 (2012) (noting probable cause to bind a defendant over for trial "'signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt'"). To decide these motions, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and then determine whether the State carried its burden. Hardy, 305 Kan. at 1011. Probable cause determinations under K.S.A. 2019 Supp. 21-5231 must be premised on: (1) stipulations of the parties or evidence received at a hearing under the rules of evidence, or both; and (2) the reasonable inferences drawn from any stipulations or the evidence. And as the Hardy court observed, the district court usually is squarely tasked with resolving conflicts in the evidence in these contentious self- defense cases before it can apply the legal principles set out in our law. 305 Kan. at 1011-12. The district court should use a two-step process in making its probable cause determinations under K.S.A. 2019 Supp. 21-5231. First, the district court must make its factual findings, which may require resolving conflicts in the evidence. Second, it must reach legal conclusions as to whether the State met its probable cause burden based on those factual findings. Collins, 311 Kan. at 428. Under Hardy, the highly disputed facts presented at Thomas' hearing required judicial resolution by weighing the evidence and drawing reasonable inferences from it before reaching any legal conclusions about the possible application of K.S.A. 2019 Supp. 21-5222(b) and K.S.A. 2019 Supp. 21-5226(b). The district 414 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas court's fleeting explanation of its conclusions—without first adequately addressing the contradictory testimony—was error. For example, the Thomas panel emphasized four obvious factual disputes about the moments immediately preceding the shooting that were not addressed by the district court: (1) whether Thomas stopped his vehicle, got out, and approached Saldana or whether Saldana approached him; (2) the nature of any physical contact between the men before Thomas fired a shot; (3) the content of any verbal exchange, including fighting words, which may have occurred between Thomas and Saldana; and (4) whether the first shot was accidental, an intentional hit, or intended as a warning shot. Thomas, 2017 WL 6064660, at *8. These determinations are especially pertinent to the State's contention under K.S.A. 2019 Supp. 21-5226(b) that Thomas was the initial aggressor, because under some versions of the testimony he was already armed, had donned his ballistic vest before Saldana arrived, refused to leave the area when given an opportunity, and reentered the yard to approach Saldana. And these findings are similarly critical to resolving whether there were subjective and objective bases for Thomas to have a reasonable belief about the need to use deadly force to prevent imminent death or great bodily harm under the self-defense statute. The district court seemingly brushed aside these conflicts by seizing on Detective Paden's testimony that the officer could not say Thomas committed "a wrong act" by drawing his weapon. It concluded: "Well, if he's justified in drawing his weapon, an objective person would think that he's justified in firing it, because if you're justified in drawing it, you're justified in using it." (Em- phasis added.) But firing one's weapon need not inevitably follow the act of drawing it, either factually or legally. The panel correctly held an individual who might be justified in drawing a deadly weapon would not necessarily be justified in firing it as a conclusion of law. Thomas, 2017 WL 6064660, at *13. K.S.A. 2019 Supp. 21-5222 distinguishes between "use of force" and "use of deadly force," and K.S.A. 2019 Supp. 21- 5221(a) provides their definitions. See K.S.A. 2019 Supp. 21- 5221(a)(1)(B) ("'Use of force' means . . . the presentation or display of the means of force."); K.S.A. 2019 Supp. 21-5221(a)(2) VOL. 311 SUPREME COURT OF KANSAS 415

State v. Thomas

("'Use of deadly force' means the application of any physical force described in paragraph [1] which is likely to cause death or great bodily harm to a person."). These statutory definitions clarify that "use of deadly force" does not include "[a]ny threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon . . . [if] the actor's purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another." K.S.A. 2019 Supp. 21-5221(a)(2). The district court was simply wrong in ignoring the differences between force and deadly force in reaching its legal conclusion. Compare State v. Sanders, No. 103,171, 2011 WL 3276191, at *5 (Kan. App. 2011) (unpublished opinion) (jury instruction appropriate on "use of force" in self-defense when defendant pointed gun but did not fire), with Hardy, 305 Kan. 1001 (self-defense immunity for "use of deadly force" when defendant fired gun). See 2 LaFave, Substantive Criminal Law § 10.4(a) (3d ed. 2018) ("But merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified in pulling the trigger."). The record also shows the detective's opinion testimony took different forms—one particular to Thomas and another from a general, objective law enforcement perspective. As to the former, Paden testified: "I don't know that drawing his weapon was a wrong act. The information that he had had before with the fact that Saldana was a violent man, always carried a weapon, you have to take that into consideration." (Emphases added.) And for the latter, the detective said: "I couldn't say one way or another for sure what one officer might find life threatening and another one might not." (Emphasis added.) The panel correctly noted failing to make this distinction blurred the legal standard the district court tried to employ. Thomas, 2017 WL 6064660, at *12 ("We know of no legal authority that equates a law enforcement officer's view under these circumstances with a reasonable person's objective view."). And the district court referenced no other testimony or facts supporting its conclusion that Thomas' use of deadly force was objectively reasonable. 416 SUPREME COURT OF KANSAS VOL. 311

State v. Thomas

Similarly, the district court leaped to an erroneous conclusion that Thomas must have had a reasonable subjective belief that his use of deadly force was necessary to prevent imminent death or greatly bodily harm simply because he put on a protective vest before Saldana arrived. Donning the vest preceded the conduct Thomas said justified his use of deadly force. But what he said during his police interviews about his decision to use deadly force was (1) Saldana "kept coming at him"; (2) he did not know if Sal- dana would go inside the house or do anything to anyone else; and (3) he never saw Saldana with a weapon. So even from Thomas' own statements, getting the vest from his truck does not show the shooting was necessary to prevent imminent death or greatly bodily harm. And without more, putting on the protective vest could just as easily support the State's view that Thomas was the initial aggressor and intended to inflict harm because he chose to put on the vest and engage with Saldana while wearing it instead of simply driving away. Finally, we note Thomas does not directly challenge the panel's additional direction that a new evidentiary hearing is necessary before making the required findings of fact and conclusions of law. Thomas, 2017 WL 6064660, at *13 (taking judicial notice that pre- siding district court judge retired while appeal was pending). We would observe that under the circumstances outlined in the panel's decision, its ruling is appropriate. As the panel directed,

"At this evidentiary hearing the district court must consider the totality of the circumstances, weighing the evidence before it without deference to the State, and determine whether the State has met its burden to establish probable cause to believe that Thomas initially provoked the use of force against [himself], as described in K.S.A. 2016 Supp. 21-5226[b] and [c], which would render both the justification and immunity defenses unavailable to Thomas. If the district court finds that Thomas did not initially provoke the use of force, the court must consider the totality of the circumstances, weighing the evidence before it without deference to the State, and determine whether the State has met its burden to establish probable cause to believe that Thomas' use of deadly force was not statutorily justified because Thomas did not have a sincere and honest belief that it was necessary to use deadly force and/or that a reasonable person in Thomas' situation would not have perceived the use of deadly force was necessary as required by K.S.A. 2016 Supp. 21-5222." 2017 WL 6064660, at *13.

Judgment of the Court of Appeals reversing the district court's judgment and remanding is affirmed. Judgment of the district court is reversed and remanded with directions. VOL. 311 SUPREME COURT OF KANSAS 417

State v. Thomas

NUSS, C.J., not participating. JARED B. JOHNSON, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Johnson was appointed to hear case No. 116,111 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

418 SUPREME COURT OF KANSAS VOL. 311

State v. Collins

No. 117,743

STATE OF KANSAS, Appellant, v. SETH COLLINS, Appellee.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Statutory Immunity from Criminal Prosecution— Probable Cause Standard—Burden on State. Probable cause is the standard used to decide whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, which is the statute broadly encompassing justifications for using force to defend people or property. The State bears the burden to establish probable cause that defendant's use of force was not statutorily justified when a defendant invokes the statute.

2. SAME—Motion for Immunity from Criminal Prosecution—State Estab- lished Probable Cause to Defeat Motion. The term "probable cause" is described and applied in our caselaw somewhat differently depending on the context. For purposes of K.S.A. 2019 Supp. 21-5231, the State establishes the probable cause necessary to defeat a pretrial motion for immunity if the district court's factual findings are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant's guilt despite the defendant's claim of justified use-of-force immunity.

3. SAME—Motion for Immunity from Criminal Prosecution—Court Consid- ers Totality of Circumstances. To decide a defendant's motion for immunity from criminal prosecution under K.S.A. 2019 Supp. 21-5231, a district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State carried its burden to establish probable cause that defendant's use of force was not statutorily justified.

4. SAME—Motion for Immunity from Criminal Prosecution—Court's Fact Findings for Probable Cause. A district court's probable cause fact finding under K.S.A. 2019 Supp. 21-5231 must be premised on: (a) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (b) the reasonable inferences to be drawn from any stipulations or the evidence.

5. SAME—Motion for Immunity from Criminal Prosecution—Determination Whether State Met Burden of Establishing Probable Cause. The process envisioned by K.S.A. 2019 Supp. 21-5231 for determining whether the State met its burden of establishing probable cause will usually require a district court to hear and resolve conflicting evidence when making its factual findings. The district court's legal conclusions in deciding whether the State established probable cause must be supported by those factual findings. VOL. 311 SUPREME COURT OF KANSAS 419

State v. Collins

6. SAME—Motion for Immunity From Criminal Prosecution—State Must Es- tablish Use of Force Not Justified. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant's use of force was not justified in accordance with K.S.A. 2019 Supp. 21-5222 under either or both of two scenarios: (a) the defendant did not honestly believe the use of force was necessary under the circumstances, or (b) a reasonable person would not believe the use of force was necessary under the circumstances.

7. SAME—Motion for Immunity from Criminal Prosecution—State Can De- feat By Establishing Probable Cause. Under K.S.A. 2019 Supp. 21-5231, the State can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force under the conditions set out in K.S.A. 2019 Supp. 21-5226(b) or (c).

Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 140, 425 P.3d 630 (2018). Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed April 24, 2020. Judgment of the Court of Appeals reversing the district court and remanding the case is affirmed. Judgment of the district court is reversed, and the case is remanded.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: The lower courts disagree over the defendant's en- titlement to statutory self-defense immunity after he drew a knife during an altercation with three unarmed women that ended with one dead and another seriously injured. The district court dismissed second-degree murder and reckless aggravated battery charges, ruling Seth Collins had reasonable grounds to believe he was in danger of great bodily harm. A Court of Appeals panel reversed and remanded the case for further district court proceedings. State v. Collins, 56 Kan. App. 2d 140, 149, 425 P.3d 630 (2018) ("[T]o overcome a defendant's immunity claim, the State does not need to prove that the defendant's use of force was not justified; it merely has to establish probable cause that the defendant's use of force was not justified."). We agree with the panel. 420 SUPREME COURT OF KANSAS VOL. 311

State v. Collins

We hold Collins is not entitled to immunity from prosecution under K.S.A. 2019 Supp. 21-5231. On the facts as found by the district court, there is probable cause to believe Collins' use of force was not statutorily justified. To explain this, we parse the escalating sequence of events comprising the deadly encounter by breaking it down into discrete uses of force of varying degrees. And by examining each forceful act in context, we conclude the State met its probable cause burden by showing that an ordinarily prudent and cautious person could conscientiously entertain a reasonable belief Collins was not privileged to apply deadly force. That was all the State had to do at this pretrial juncture. See K.S.A. 2019 Supp. 21-5231(c) ("A prosecutor may commence a criminal prosecution upon a determination of probable cause."); see also K.S.A. 2019 Supp. 21-5231(a) ("As used in this subsection, 'criminal prosecution' includes arrest, detention in custody and charging or prosecution of the defendant."). Whether Collins' conduct, as alleged by the State, was justified under the self-defense statutes must be decided at a trial under our statutory scheme.

FACTUAL AND PROCEDURAL BACKGROUND

Our focus is on two incidents on the same evening at an apartment complex involving Collins and his neighbors. In the first incident, Collins suffered multiple head and body injuries. In the second, Kayla Brown died from stab wounds inflicted by Collins with a foldable knife that had a 4.5-inch handle and "slightly less" than a 4-inch blade. Kayla's twin sister, Shayla Brown, suffered a serious stab wound to her bicep. At the time, Collins was 38 years old, 5'11" tall, and weighed about 250 to 255 lbs. Shayla was 22 years old, 4'11" tall and weighed about 113 lbs. Kayla was the same height as Shayla but weighed about 10 lbs. less. The State charged Collins with second-degree murder for killing Kayla and reckless aggravated battery for stabbing Shayla. See K.S.A. 2019 Supp. 21-5403(a)(1); K.S.A. 2015 Supp. 21-5413(b)(2)(B). Collins filed a pretrial motion to dismiss the State's charges claiming self-defense immunity. See K.S.A. 2019 Supp. 21-5222 (self-defense theory); K.S.A. 2019 Supp. 21-5231 (immunity VOL. 311 SUPREME COURT OF KANSAS 421

State v. Collins from prosecution). The district court conducted a three-day evidentiary hearing, during which the parties presented testimony and statements from several witnesses, including Collins, other participants in the conflict, and outside observers. The district court agreed with Collins and dismissed the case. We recite the facts as found by the district court in its order granting Collins self-defense immunity because our standard of review preserves factual findings supported by substantial competent evidence. See State v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30 (2017). When necessary, we quote from the district court's order.

The two incidents

The first incident began on the night of April 30, 2016, when Collins drove back to his apartment with his two daughters. He tried to park near a vehicle occupied by Luz Toral. Shayla was outside the vehicle talking to Toral. Collins believed Shayla was obstructing the parking spot. He "made negative comments" towards the women and drove away. After leaving his vehicle in guest parking, Collins and his daughters walked to his apartment building. Another verbal exchange ensued between Collins and Toral. Collins' daughters kept walking toward his apartment. Shayla and Kayla got involved. Collins "clearly received and delivered numerous verbal insults" including some that were "racist, vulgar and inciting." A physical altercation broke out that Collins "started . . . by pushing himself physically up to Ms. Toral in the parking lot." Kayla, Shayla, "and possibly others joined in against" Collins. At that time, his daughters called 911. Trishall Dear, the twins' mother, arrived in the parking lot and calmed the situation. Collins went into his apartment, having "sustained significant external injuries to his face, head and other portions of his body . . . ." About 10 minutes later, the deadly second incident began when Collins returned to the parking lot to look for his glasses. Kayla, Shayla, and Dear were still outside. Collins, Shayla, and Kayla reengaged in a verbal quarrel with more insults. After Col- lins found his glasses, he had more words with the twins and walked back toward his apartment. As he passed Dear, who was 422 SUPREME COURT OF KANSAS VOL. 311

State v. Collins standing near the door into the building, he "quietly stated something derogatory" to her. The district court found there was no physical contact between Collins, Shayla, Kayla, and Dear up to this point of the second incident. But the court commented there was

"evidence that Mr. Collins . . . verbally provoked Kayla and Shayla . . . while in the parking lot during the second encounter when he looked for and located his glasses. Mr. Collins was still verbally 'provoking' when he made a negative comment to Ms. Dear as he went by her on the way back into the building. Yet, the totality of the evidence does not support a finding that physical force was provoked by Mr. Collins during the second encounter."

Dear followed Collins into the building. Her daughters started after them. Collins walked up a nine-step staircase. As he approached the top, "all three ladies [were] very close (just a step or two) behind him and he look[ed] back at them." The district court characterized this moment elsewhere in its order as the women "confront[ing him] from behind in a very aggressive way" and noted "it [was] apparent from the evidence [the twins] intended to physically punish him for the way he had treated them and their mother." Then, the court found:

"As Mr. Collins gets to the top of the first flight of stairs, he turns towards the three ladies immediately behind him and displays a knife. The testimony indicates that Collins initially held the knife in his right hand; with the blade open; with the blade pointing up; and he held it about shoulder to head-high next to him. "While the precise details concerning these few key seconds vary significantly, the evidence indicates that within moments of Mr. Collins displaying the knife, Shayla Brown grabbed the back of his shirt collar and pulled him back towards her, her sister and her mother. In the next few moments, Mr. Collins, Shayla, Kayla, and Ms. Dear all fell back down the staircase. . . . . "No evidence was presented to clearly indicate who was stabbed first or the exact location of Kayla or Shayla at the time they were stabbed. The evidence is clear that Shayla Brown was stabbed on her left bicep and Kayla Brown sustained a fatal stab wound on the left side of her neck. "Once at the bottom of the stairs Shayla held Mr. Collins down momentarily and Mr. Collins still had the knife. Once Ms. Dear saw how seriously wounded Kayla was . . . she went to aid Kayla. Shayla then released her hold on Mr. Col- lins to assist her mother and sister. VOL. 311 SUPREME COURT OF KANSAS 423

State v. Collins

"Mr. Collins gets up, folds up his pocket knife and goes back up the stairs to his apartment." The district court did not clearly address how Kayla and Shayla were stabbed, but Collins testified he "start[ed] waving the knife" as they all tumbled down the stairs. He denied using "pre- cision stabs or cuts" or "looking at exactly where the knife [was] going." After analyzing the applicable statutory provisions, the district court dismissed all criminal charges. It explained, "The court has considered the totality of the circumstances and weighed much conflicting evidence. The evidence presented does not establish probable cause that Mr. Collins' use of force was not justified under the statutes applicable to this case. Based upon these statutes and the recent case law cited herein, Mr. Col- lins is not subject to criminal prosecution for the tragic death of Kayla Brown or the injuries sustained by Shayla Brown." The State timely appealed, arguing it had established probable cause that Collins' use of deadly force was not necessary to prevent great bodily harm to himself. See K.S.A. 2019 Supp. 21- 5222. It also argued Collins' use of deadly force was not statutorily justified because he was the initial aggressor in the stairwell incident under K.S.A. 2019 Supp. 21-5226. A Court of Appeals panel reversed. The panel acknowledged the district court faced conflicting evidence but concluded the court applied the wrong legal standard. Collins, 58 Kan. App. 2d at 152. It reasoned that the district court erred by deciding what a jury was supposed to decide, i.e., "whether Collins was justified in his use of deadly force in self- defense." 56 Kan. App. 2d at 152. As the panel explained, "[t]he State's burden in overcoming Collins' immunity claim was simply to establish probable cause that his use of deadly force in self- defense was not justified." 56 Kan. App. 2d at 152. In the Court of Appeals' view, "[U]nder the facts in this case, and because it is such a close call, conceivably both could be true." 56 Kan. App. 2d at 152. The panel also concluded that even if the district court had applied the correct legal standard to the evidence, the facts as found by the district court did not support a grant of immunity. The panel did not expressly decide the aggressor issue under K.S.A. 2019 Supp. 21-5226. 424 SUPREME COURT OF KANSAS VOL. 311

State v. Collins

Collins petitioned this court for review. The State condition- ally cross-petitioned for review on the panel's failure to decide whether the State met its probable cause burden to demonstrate Collins was the aggressor at the time of the fatal stabbing and initially provoked the use of force. We granted review on all issues. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decision); K.S.A. 60- 2101(b) (Supreme Court has jurisdiction to review Court of Ap- peals decisions upon petition for review).

ANALYSIS

Under Kansas' self-defense immunity statute,

"(a) A person who uses force which, subject to the provisions of K.S.A. 21- 5226, and amendments thereto, is justified pursuant to K.S.A. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, 'criminal prosecution' includes arrest, detention in custody and charging or prosecution of the defendant. . . . . "(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause." K.S.A. 2019 Supp. 21-5231.

The district court plays a critical role in the pretrial processing of immunity claims under the statutory scheme laid out by the Legislature. Hardy, 305 Kan. at 1010. K.S.A. 2019 Supp. 21-5231 confers a "true immunity" for those who qualify. This means the law carries with it "the necessity of a procedural gatekeeping function, typically exercised by a detached magistrate, who will prevent certain cases from ever getting to a trial and a jury." Hardy, 305 Kan. at 1010. And that gatekeeping is triggered—as it was here—by a defendant's pretrial motion to invoke immunity under K.S.A. 2019 Supp. 21-5231. This motion imposes on the State the burden to come forward with probable cause to show the defendant's use of force was not statutorily justified. Hardy, 305 Kan. at 1011. VOL. 311 SUPREME COURT OF KANSAS 425

State v. Collins

At this pretrial stage, the district court's function is to assess the State's probable cause. See K.S.A. 2019 Supp. 21-5231(c). The court decides pretrial immunity motions by considering the totality of the circumstances, weighing the evidence before it without deference to the State, and determining whether the State carried its burden. The district court's probable cause determination must be premised on: (1) stipulations of the parties, evidence received at a hearing under the rules of evidence, or both; and (2) the reasonable inferences drawn from any stipulations or the evidence. In practice, this is a two-step process. First, the district court must make its factual findings. As the Hardy court observed, in these contentious self-defense cases a district court usually is tasked with resolving conflicts in the evidence to do that. This first step necessarily is distinct from the second step: the district court must reach legal conclusions as to whether the State met its probable cause burden based on those factual findings. 305 Kan. at 1012. In State v. Thomas, 311 Kan. 406, 416-17, 462 P.3d 149 (2020), we held the district court failed to properly carry out its role in this pretrial motion process when it made no factual findings before reaching its legal conclusion that self-defense immunity applied. In Collins' case, we are not concerned with that type of failure. Instead, we must consider whether the district court applied its factual findings as the statutes require in the second step. And as the panel correctly observed, the State's burden at this juncture was simply to establish probable cause that Collins' use of deadly force in self-defense was not justified. 56 Kan. App. 2d at 152. The term "probable cause" admittedly has been described and applied differently in our caselaw depending on the context. See, e.g., State v. Hubbard, 309 Kan. 22, Syl. ¶ 4, 430 P.3d 956 (2018) ("Probable cause to support a search can be established if the totality of the circumstances indicates there is a fair probability the place to be searched contains contraband or evidence of a crime."); Hamel v. Hamel, 296 Kan. 1060, Syl. ¶ 8, 299 P.3d 278 (2013) ("In determining whether a beneficiary has probable cause to challenge the provisions of a will or trust, the term 'probable 426 SUPREME COURT OF KANSAS VOL. 311

State v. Collins cause' means the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude there is a substantial likelihood that the contest or attack will be successful."); State v. Washington, 293 Kan. 732, 733-34, 268 P.3d 475 (2012) (noting probable cause to bind a defendant over for trial "'signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt'"); In re Burch, 296 Kan. 215, Syl. ¶ 7, 291 P.3d 78 (2012) ("In order to establish probable cause to justify transitional release, a person committed under the Sexually Violent Predator Act must present facts at the annual review hearing that are sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the person's mental ab- normality or personality disorder has so changed that he or she is safe to be placed in transitional release."); State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004) (describing probable cause to support a warrantless arrest as "'the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime'"). In the self-defense immunity setting, probable cause means that the facts as found by the district court are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of defendant's guilt despite the claim of justified use-of-force immunity. See Hardy, 305 Kan. 1001, Syl. ¶ 1 (holding State must establish probable cause that use of force was not statutorily justified to overcome motion for immunity under K.S.A. 2016 Supp. 21-5231); see also State v. Ultreras, 296 Kan. 828, 846, 295 P.3d 1020 (2013) (holding State defeated immunity motion because it "offered evidence sufficient for a person of 'ordinary prudence and caution to conscientiously entertain a reasonable belief' of [defendant's] guilt despite his claim of justified use- of-force immunity"). It is important to remember the probable cause burden required by K.S.A. 2019 Supp. 21-5231, like all probable cause determinations called for in various other settings, is substantially less than the proof beyond a reasonable doubt necessary to obtain a guilty verdict. See State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 VOL. 311 SUPREME COURT OF KANSAS 427

State v. Collins

(2000) ("Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.").

Standard of review

An appellate court applies a bifurcated standard of review when considering a district court's probable cause determination on a pretrial immunity motion. The factual findings arising from disputed evidence are reviewed for substantial competent evidence, and the reviewing court will not reweigh that disputed evidence. The ultimate legal conclusions drawn from the facts are considered de novo. Hardy, 305 Kan. at 1012.

Discussion

It should be conceded upfront that the statutory scheme sup- plying various justifications for using force, including deadly force, to defend people or property has proven complex, overlapping, and difficult to apply from case to case. This appeal illustrates some of that higher degree of difficulty. So we begin where we always should start, with the statutes. Self-defense is governed by K.S.A. 2019 Supp. 21-5222, which provides:

In a case involving the use of deadly force in defense of a person, governed by subsection (b), there is a two-prong test. The first is subjective. It requires a showing that the defendant sincerely and honestly believed deadly force was necessary to prevent imminent death or great bodily harm to the defendant or a third person. The second prong is objective. It requires a showing that a 428 SUPREME COURT OF KANSAS VOL. 311

State v. Collins reasonable person in the defendant's circumstances would have perceived the use of deadly force as necessary to prevent imminent death or great bodily harm to the defendant or a third person. State v. Macomber, 309 Kan. 907, 916-17, 441 P.3d 479 (2019). K.S.A. 2019 Supp. 21-5222 therefore establishes the minimum conditions that must exist for the use of deadly force in defense of a person to be statutorily justified. And a defendant can assert any of the various justifications allowed at an early stage in the proceedings by invoking immunity under K.S.A. 2019 Supp. 21-5231. But the State can overcome a defendant's pretrial immunity motion by establishing probable cause that the defendant's use of force was not justified under either or both of two scenarios: (1) the defendant did not honestly believe the use of force was necessary under the circumstances, or (2) a reasonable person would not believe the use of force was necessary under the circumstances. In other words, if the State shows at least one of these circumstances, the dispute over K.S.A. 2019 Supp. 21-5222's application may become a question for a trial. Another way the Legislature imposes limits on a defendant's ability to claim the justification described in K.S.A. 2019 Supp. 21-5222 is under K.S.A. 2019 Supp. 21-5226. It provides that immunity is not available to a person who:

"(a) Is attempting to commit, committing or escaping from the commission of a forcible felony; "(b) initially provokes the use of any force against such person or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or "(c) otherwise initially provokes the use of any force against such person or another, unless:

(1) Such person has reasonable grounds to believe that such person is in imminent danger of death or great bodily harm, and has exhausted every reasonable means to escape such danger other than the use of deadly force; or

(2) in good faith, such person withdraws from physical contact with the assailant and indicates clearly to the assailant that such person desires to withdraw and terminate the use of such force, but the assailant continues or resumes the use of such force."

As can be seen, subsection (a) denies the self-defense justification to a person engaged in a forcible felony. And subsections (b) and (c) articulate additional, but separate, bases for denying VOL. 311 SUPREME COURT OF KANSAS 429

State v. Collins the self-defense claim when a person "initially provokes the use of any force against such person or another." K.S.A. 2019 Supp. 21-5226(b)-(c). The subsection (b) limitation includes the additional element that the initial provocation be done "with intent to use such force as an excuse to inflict bodily harm upon the assailant." The subsection (c) limitation contains a retreat "safe harbor" that is attainable under specified circumstances to an initial aggressor who lacks the additional element required in subsection (b). See State v. Beltz, 305 Kan. 773, 781, 388 P.3d 93 (2017) (determining "the retreat safe harbor exceptions . . . are only available to a defendant falling under subsection [c]"). The State argues Collins' conduct in the stairwell, especially in pulling a knife on the unarmed women, makes K.S.A. 2019 Supp. 21-5226 applicable. In the State's view, if it established probable cause that Collins engaged in conduct that removes the possibility of a self-defense justification under any subsection of K.S.A. 2019 Supp. 21-5226, consideration of the two-part test described above for K.S.A. 2019 Supp. 21-5222(b) is unnecessary. Against this backdrop, the State's appeal presents alternative analytical paths because it contends it met its probable cause burden under either K.S.A. 2019 Supp. 21-5222(b) or K.S.A. 2019 Supp. 21-5226. The panel reached its outcome based on K.S.A. 2019 Supp. 21-5222(b). Collins, 56 Kan. App. 2d at 153-54. But its approach tries to tackle a closer question under these facts and carries with it the added risk of reweighing facts, which is inappropriate on review. Hardy, 305 Kan. at 1012. We hold K.S.A. 2019 Supp. 21-5226, the initial aggressor statute, operates conclusively to deny the immunity motion and reverse the district court on that basis. See State v. Salary, 301 Kan. 586, 594, 345 P.3d 1165 (2015) (jury instruction case; addressing K.S.A. 2019 Supp. 21-5226[b]'s application first before conducting the two-prong test under the self-defense statute because subsection [b]'s operation was "dispositive").

The probable cause showing Collins was not justified drawing his knife

In analyzing the second incident just before the stabbings, we begin with Collins' conduct as he reemerged to retrieve his 430 SUPREME COURT OF KANSAS VOL. 311

State v. Collins glasses. The district court found Collins triggered a verbal exchange with the women as he went back to the parking lot and was "still verbally 'provoking'" the women "when he made a negative comment to Ms. Dear as he went by her on the way back into the building." Immediately afterward, according to the district court's findings, the women "very aggressive[ly]" followed Collins up the staircase. This was the first use of force. To explain this, "'use of force'" for the purposes of the self- defense statutes includes "[w]ords or actions that reasonably convey the threat of force . . . ." K.S.A. 2019 Supp. 21-5221(a)(1)(A). And as the district court found, "it was apparent from the evidence [the women] intended to physically punish [Collins] for the way he had treated them and their mother." Nevertheless, is there probable cause to believe Collins initially provoked this first use of force? The answer is yes. The initial aggressor statute applies when a person "initially provokes the use of any force" against the person—not just physical force. (Emphasis added.) K.S.A. 2019 Supp. 21-5226(b), (c). And the self-defense statutes plainly consider threatening, non- physical conduct to be "force." See K.S.A. 2019 Supp. 21-5221. The district court took too narrow of a view of the initial aggressor statute when it concluded Collins did not provoke "physical force." Under our statutory scheme, an ordinarily prudent and cautious person could conscientiously entertain a reasonable belief that Collins initially provoked the women's use of force against him when he verbally rekindled the conflict, resuming the same verbal hostilities that just minutes earlier ended in physical violence and injury to Collins during the first incident. Next, Collins responded with his own use of force—halting the retreat to his apartment at the top of the stairwell, turning to the women, and brandishing the knife. This must be analyzed first under the initial aggressor provisions of K.S.A. 2019 Supp. 21- 5226(b) and (c). Importantly, at this point, we are not yet concerned with what happened after Collins brandished the knife, which we will consider below when discussing K.S.A. 2019 Supp. 21-5226(a) (engaging in a forcible felony). Under subsection (b), use of force is not justified if the person initially provokes the use of force against that person or another, VOL. 311 SUPREME COURT OF KANSAS 431

State v. Collins with intent to use the force as an excuse to inflict bodily harm on the assailant. The district court found Collins did not harbor that intent, and we do not find reason to disturb that factual finding. But under subsection (c)'s retreat safe harbor exceptions, a provocateur's use of force can be justified in only two circumstances. First, under subsection (c)(1), if they have reasonable grounds to believe they are in imminent danger of death or great bodily harm and have exhausted every reasonable means to escape such danger other than resorting to the use of deadly force. Sec- ond, under subsection (c)(2), if in good faith they withdraw from physical contact with the assailant and clearly indicate their desire to withdraw and terminate the use of force, but the assailant continues or resumes it. An ordinarily prudent and cautious person could conscientiously entertain a reasonable belief—based upon the facts found by the district court—that Collins did not exhaust every reasonable means to escape. See K.S.A. 2019 Supp. 21-5226(c)(1). Col- lins stopped at the top of the stairs to display his knife to the women, instead of simply continuing to his apartment. The district court concluded "at the point [Collins] stabbed [the victims], [he] had no reasonable means to get away from them" because "[o]ne of them had him by the collar and both were coming upon him aggressively." But this ignored whether Collins' actions leading up to that point were justifiable. This omission was error. An ordinarily prudent and cautious person could also conscientiously entertain a reasonable belief Collins did not "in good faith, . . . [withdraw] from physical contact with the assailant and [indicate] clearly to the assailant that [he] desire[d] to withdraw and terminate the use of such force, but the assailant continue[d] or resume[d] the use of such force." K.S.A. 2019 Supp. 21- 5226(c)(2). The district court viewed Collins' retreat into the apartment building as both his withdrawal and his communication of intent. But this ignores that the same conduct was contemporaneous with Collins' verbal taunting of Dear. And that provoking verbal conduct was similar to what sparked the physical fight with the women minutes earlier. A jury could conclude that what the district court viewed as Collins' retreat was not undertaken as a 432 SUPREME COURT OF KANSAS VOL. 311

State v. Collins good faith effort to deescalate the conflict under K.S.A. 2019 Supp. 21-5226(c)(2).

The probable cause showing that Collins was not justified using his knife

We now turn to the deadly aftermath of Collins' decision to pull out his knife. In the third discernable use of force during the second incident, the women responded by grabbing hold of him. And that instantly led to the fourth use of force with Collins swinging the knife and stabbing and cutting the twins as everyone tumbled down the stairs. An ordinarily prudent and cautious person could conscientiously entertain a reasonable belief that Collins' lethal reply was not justified, regardless of whether the women were warranted in grabbing him. If they were, Collins' conduct was not justified because self-defense immunity is only available when force is necessary to defend against the "imminent use of unlawful force." (Emphasis added.) K.S.A. 2019 Supp. 21-5222(a). And even if they were not warranted in grabbing him, a jury could still conclude Collins was not entitled to self-defense immunity because he initiated the fourth use of force by attempting to commit or committing a forcible felony—aggravated assault. K.S.A. 2019 Supp. 21-5226(a). This is because under subsection (a), a person's use of force is not justified if the defendant is engaged in a "forcible felony." A forcible felony "includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person." K.S.A. 2019 Supp. 21-5111(n). Aggravated assault is a forcible felony because it is a felony involving the threat of physical force against a person. See K.S.A. 2019 Supp. 21-5412(a) ("Assault is knowingly placing another person in reasonable apprehension of immediate bodily harm."), (b) ("Aggravated assault is assault, as defined in subsection [a], committed . . . [w]ith a deadly weapon; . . . while disguised in any manner designed to conceal identity; or . . . with intent to commit any felony."), (e)(2) (aggravated assault is person felony). VOL. 311 SUPREME COURT OF KANSAS 433

State v. Collins

It follows from the facts as found by the district court that there is probable cause to believe Collins committed an aggravated assault when he turned and wielded the knife against the women. And this all flows from the earlier circumstances that show probable cause Collins provoked the women into following him up the stairwell through his verbal taunting. Under these facts, a jury could conclude the knife was a deadly weapon, and that Collins knowingly placed the women in reasonable apprehension of immediate bodily harm when he wielded it. See State v. Schoen- berger, 216 Kan. 464, 465, 468, 532 P.2d 1085 (1975) (evidence sufficient to prove aggravated assault when defendant armed with a large knife and swiped at victim with it during a "street fracas"). Collins chose to draw his knife in the afterglow of a prior confrontation in which he was badly injured, after his continued verbal provocation of the women when he reemerged to the parking lot, and while the women were very close to him at the top of the stairs. These circumstances present an "atmosphere . . . heavily fraught with danger and . . . threatening enough to have induced apprehension on the part of [the victims] for [their] personal safety." See State v. Warbritton, 215 Kan. 534, 537-38, 527 P.2d 1050 (1974) (holding evidence insufficient to support aggravated assault conviction when, despite circumstances sufficient to in- duce fear for personal safety, victim denied being in fear and said she was not scared). And Collins' undeniable purpose in drawing the knife on the women when he did was either to use it on them or make them fear that he would. Yet, the district court rejected K.S.A. 2019 Supp. 21-5226(a)'s application by explaining, "There is no evidence that Mr. Collins was escaping from any felony as he headed up the stairs to his apartment." (Emphasis added.) This, of course, was accurate, but it is incomplete. The court stopped short in fully determining the statute's application to Collins' conduct "as he headed up the stairs." It failed to more thoroughly consider whether there was probable cause to believe Collins was engaged in other disquali- fying conduct when he drew the knife and brandished it on the unarmed women. K.S.A. 2019 Supp. 21-5226(a) encompasses more than escaping from the commission of a felony, which is all the district court says it considered. The statute expressly includes 434 SUPREME COURT OF KANSAS VOL. 311

State v. Collins attempting to commit, or committing, a forcible felony. The district court's shortcoming was error. On the whole, the district court lost sight of its task at this pretrial stage. We hold the State supplied probable cause to believe Collins' killing of Kayla and wounding of Shayla were not justifiable acts of self-defense under our statutory scheme. The State's prosecution of Collins should have been permitted to continue. The decision whether to hold Collins criminally liable for his conduct, and to what degree, should be made at trial.

Judgment of the Court of Appeals reversing the district court's judgment and remanding for trial is affirmed. Judgment of the district court is reversed and the case is remanded with directions.

NUSS, C.J., not participating. JARED B. JOHNSON, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Johnson was appointed to hear case No. 117,743 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 311 SUPREME COURT OF KANSAS 435

State v. Espinzoa

No. 118,737

STATE OF KANSAS, Appellee, v. FILIBERTO B. ESPINOZA JR., Appellant.

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SYLLABUS BY THE COURT

CRIMINAL LAW—Challenge to Constitutionality of Sentence—Defend- ant's Obligation to Ensure Factual Record Developed in District Court. A defendant making an as-applied challenge to the constitutionality of a sentence under § 9 of the Kansas Constitution Bill of Rights has an obligation to ensure an adequate factual record is developed in district court. If necessary, this requires the defendant to file a motion invoking the judge's duty to make findings of fact and conclusions of law under Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215).

Appeal from Wyandotte District Court; ROBERT W. FAIRCHILD, judge. Opinion filed April 24, 2020. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.

Lois Malin, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: The State charged Filiberto B. Espinoza Jr. with one count of premeditated first-degree murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery for the killing of Louis Scherzer. During the trial, Espinoza pleaded guilty to first-degree felony murder—an off-grid person felony mandating a hard 25 sentence. See K.S.A. 2019 Supp. 21- 5402(a)(2), (b); K.S.A. 2019 Supp. 21-6620(b)(1). But before sentencing, Espinoza challenged the constitutionality of his hard 25 sentence as applied to the facts of his case under § 9 of the Kansas Constitution Bill of Rights. The district court denied his challenge, finding the sentence constitutional. Espinoza now challenges the district court's decision on direct appeal. Before the district court, Espinoza acknowledged his offense mandated the hard 25 sentence. See K.S.A. 2019 Supp. 21- 5402(a)(2), (b) (defining first-degree felony murder as an off-grid person felony); K.S.A. 2019 Supp. 21-6620(b)(1) (stating that de- 436 SUPREME COURT OF KANSAS VOL. 311

State v. Espinoza fendants convicted of first-degree felony murder "shall not be eli- gible for parole prior to serving 25 years' imprisonment"). But before sentencing, he moved for a durational departure arguing that this mandated sentence was unconstitutional as applied to him given the facts of the case. Espinoza continued to assert his constitutional claims orally at sentencing. He argued that the three-pronged proportionality test announced in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), required the district court to assess the specific facts of his case to determine the constitutionality of his sentence under § 9 of the Kansas Constitution Bill of Rights. Espinoza then listed facts from his case he believed weighed in favor of granting a durational departure. The district court denied this request, finding Espinoza's hard 25 sentence constitutional:

"As both parties have acknowledged, the statute K.S.A. 21-6620 provides that the Court should not make any suspension, modification, or reduction of the sentence. The Court is bound by that statute and I have no reason to believe that it's unconstitutional. So the defendant's motion to depart is denied."

In making this decision, the district court did not make any factual findings concerning Espinoza's as-applied constitutional challenge. On appeal, Espinoza argues the district court erred when it failed to make such findings. He requests a remand to the district court to develop the necessary factual record. Disproportionality challenges based on § 9 of the Kansas Con- stitution Bill of Rights require both legal and factual inquiries. State v. Patterson, 311 Kan. 59, 71, 455 P.3d 792 (2020). And a factual record is required for any meaningful appellate review. 455 P.3d at 801 ("'[A] challenge under § 9 of the Kansas Consti- tution Bill of Rights generally cannot be raised for the first time on appeal because of the factual inquiries involved.'"). We have repeatedly emphasized that it is the defendant's responsibility to ensure the district court makes the factual findings necessary for appellate review. See, e.g., 455 P.3d at 801-02 (stating that this court has "repeatedly emphasized" that the defendant bears the responsibility of ensuring that the district court makes adequate factual findings); State v. Cervantes-Puentes, 297 Kan. 560, 565, 303 VOL. 311 SUPREME COURT OF KANSAS 437

State v. Espinzoa

P.3d 258 (2013) (same); State v. Seward, 289 Kan. 715, Syl. ¶ 3, 217 P.3d 443 (2009) (same). This responsibility goes beyond merely raising a constitutional claim. Our decision in Seward controls the outcome here. There, as here, Seward filed a motion for a downward departure and raised the constitutional claim at sentencing. The Seward court recognized that Seward had—at least in part—preserved the issue by calling the district court's attention to his constitutional challenge. 289 Kan. at 718. But his efforts "stopped short of moving under Rule 165 to prompt the district judge to place specific findings of fact and conclusions of law on the constitutional challenges in the record." 289 Kan. at 718-19. Although the unique circumstances of Seward's case led to a remand due to the "new- ness of the constitutional issues," the Seward court precluded this remedy for future litigants:

"We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary." 289 Kan. at 721.

We have enforced this rule consistently against other defendants. In State v. Reed, 300 Kan. 494, 332 P.3d 172 (2014), the defendant argued his hard 40 sentence violated the Eighth Amend- ment to the United States Constitution and § 9 of the Kansas Con- stitution Bill of Rights. The trial judge failed to make factual findings. And on appeal, we rejected Reed's request for a remand:

"Reed ignores the fact that he neither objected to the judge's insufficient findings at the hearing, nor subsequently filed a motion under Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) or otherwise asked the sentencing judge to make factual findings. . . . . "Because of the factual components of Reed's arguments, Reed should have been aware that he was responsible for making sure there were adequate findings on the record. Having failed to do so, Reed's state and federal constitutional challenges fail, and we affirm the sentencing judge's imposition of concurrent life sentences without the possibility of parole for 40 years." 300 Kan. at 514.

The outcome must be the same here. Espinoza did not object to the district court's failure to make factual findings at sentencing and he did not file a motion under Kansas Supreme Court Rule 438 SUPREME COURT OF KANSAS VOL. 311

State v. Espinoza

165 (2020 Kan. S. Ct. R. 215). Because Espinoza failed to meet this obligation, his as-applied challenge to the constitutionality of his hard 25 sentence is not amenable to appellate review.

Affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 118,737 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 311 SUPREME COURT OF KANSAS 439

State v. Lemmie

No. 119,439

STATE OF KANSAS, Appellee, v. DIANTRE MARQUELLE LEMMIE, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Judge's Refusal to Suppress Evidence Harmless in This Case. Any possible constitutional error arising from the district court judge's refusal to suppress evidence that a detective obtained phone passcodes from the defendant was harmless in this case. No incriminating evidence from the phones was introduced in the defendant's trial.

2. SAME—Evidence Admitted Qualified as Hearsay. No error occurred in this case when the judge admitted evidence that a coconspirator made two statements after the defendant shot the victim. To the extent the statements qualified as hearsay, they were admissible under K.S.A. 60-460(i)(2), one of the grounds on which the judge relied.

3. JUDGES—Judicial Misconduct Must Prejudice Substantial Rights. The defendant in this case has not demonstrated judicial misconduct that prejudiced his substantial rights.

4. TRIAL—Evidence Sufficient for Conviction of First-Degree Murder in this Case. The State introduced more than enough evidence in this case to convict the defendant of first-degree murder.

5. SAME—Evidence Admitted Under K.S.A. 60-455—No Abuse of Discre- tion. There was no abuse of discretion in this case arising from admission of K.S.A. 2019 Supp. 60-455 evidence of the defendant's upset over a missing methamphetamine pipe.

6. CRIMINAL LAW—Cumulative Error Doctrine Not Supported In This Case. The cumulative error doctrine does not support reversal of any of the defendant's convictions in this case.

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed May 1, 2020. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.

Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Diantre Marquelle Lemmie shot and killed Adonis Loudermilk during a robbery. A jury convicted Lemmie of first- 440 SUPREME COURT OF KANSAS VOL. 311

State v. Lemmie degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. Lemmie appeals, arguing that the district court judge made multiple evidentiary errors at trial and that insufficient evidence supports his conviction for first-degree murder. His arguments fail; we affirm his convictions.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of April 26, 2016, in the parking lot of the Starlite Motel in Salina, Loudermilk died from a gunshot wound. Po- lice concluded that Lemmie and Amber Craig conspired to rob Loudermilk and that Lemmie shot and killed Loudermilk during the robbery. Before the robbery, Loudermilk, Craig, Lemmie, and a man named James Faircloth were in a room at the motel using methamphetamine and performing tattoo work. The State charged Lemmie with first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. He and Craig were tried separately. Before his trial, Lemmie moved to suppress evidence police obtained and derived from his cell phones. He alleged that police obtained his phone passcodes in violation of his Fifth Amendment right against self-incrimination. The district judge conducted a hearing on the motion to suppress. Detective Amanda Londono testified that she interviewed Lemmie after he was arrested. Londono Mirandized Lemmie, and he said he understood his rights. Lemmie asked for a lawyer. Londono ended the interview. After Londono ended her interview, police got a search warrant for Lemmie's two cell phones. Once the warrant issued, Londono met with Lemmie in jail, about 12 hours after Lemmie had invoked his Mi- randa rights. Londono provided Lemmie a copy of the warrant, told him that the phones were locked, and asked for the phones' passcodes. Lemmie told her the codes. Londono left Lemmie and told other officers the codes. Law enforcement officers were then able to get into the phones using the codes, and they located incriminating Facebook messages. VOL. 311 SUPREME COURT OF KANSAS 441

State v. Lemmie

At the motion to suppress hearing, Lemmie argued that the passcodes were testimonial. The State argued that Londono did not violate Lemmie's Miranda rights because the passcodes were not testimonial. The district judge found that the disclosure of the passcodes was not compelled and the codes not testimonial. The district judge stated:

"The production of the password and the pass code is a nonfactual statement in this Court's view that merely facilitated the production of evidence for which the State had already obtained a warrant based upon evidence independent of the defendant's statements, i.e. the password or pass code pattern."

Even if the passcodes were testimonial, the district judge also reasoned, they would nevertheless be admissible under the fore- gone conclusion doctrine. Before obtaining the passcode from Lemmie, the State had already established by independent means the existence, possession, and authenticity of the Facebook messages the State sought from the phone. Lemmie's counsel agreed that, prior to the request for the passcode, witnesses had provided law enforcement with information that the incriminating Face- book messages existed. Lemmie also asked the district judge to rule on the admissibility of hearsay statements. The State said it intended to introduce three kinds of hearsay statements by Craig: Faircloth's account of Craig's statements when Lemmie returned to the motel room immediately before the shooting; Facebook messages between Craig and Lemmie on the morning of the murder; and Faircloth's account of Craig's statements in the motel room immediately after Lemmie shot Loudermilk. The State argued that all of these statements were admissible as coconspirator statements under K.S.A. 60-460(i)(2). During argument on the hearsay issue, the district judge asked the State:

"State, I didn't hear any comment regarding whether the contemporaneous statement exception under subparagraph (d) would apply to Ms. Craig's comments at the time of the shooting which requires that while the declarant was perceiving the event or condition which the statement narrates, describes or explains, and while the declarant was under the stress of a nervous excitement caused by such a perception, and that information would be admissible. . . . What's the State's position as to the admissibility under that theory?" 442 SUPREME COURT OF KANSAS VOL. 311

State v. Lemmie

The State then argued that Craig's statements after the shooting qualified as contemporaneous statements while the declarant was perceiving the event narrated, or while the declarant was under nervous excitement under K.S.A. 60-460(d)(1)-(2). Lemmie countered that the coconspirator exception was not applicable because any conspiracy ended as soon as Loudermilk was shot. Lemmie also argued that Craig was not "unavailable"; that the statements were testimonial; and that admission of the statements would violate his constitutional right to confront witnesses. The district judge ruled that Craig's statements to Faircloth after Lemmie shot Loudermilk were admissible as contemporaneous statements under K.S.A. 60-460(d) and as coconspirator statements under K.S.A. 60-460(i)(2). The district judge ruled that the Facebook messages and Craig's statements to Faircloth when Lemmie returned to the motel room before the shooting were admissible as coconspirator statements under K.S.A. 60-460(i). The district judge further ruled that none of these statements or messages were testimonial. Before trial, the State also moved to admit K.S.A. 60-455 evidence that "after [Loudermilk] left the motel room that the defendant became upset that a methamphetamine pipe went missing and that the victim . . . is the one who is alleged to have taken it." The State argued this information was relevant to "motive, identi- fication, and intent." Lemmie opposed the admission of this evidence. The district judge ruled that the evidence was admissible because it went to motive and was part of the res gestae. Because of Lemmie's appellate challenge to the sufficiency of the State's evidence against him, a thorough review of the testimony at trial is necessary. Faircloth testified that on the night of April 25, 2016, he agreed to give tattoos to Lemmie, who went by "Tre Mack," and to Lemmie's friend, Mike Money. Faircloth dropped Lemmie and Money off at the Starlite Motel, retrieved his tattoo equipment from his home, and then returned to Room 120 of the Starlite around midnight. Inside the room were Lemmie, Loudermilk, and Craig; Money was gone. Later, another man—later identified as VOL. 311 SUPREME COURT OF KANSAS 443

State v. Lemmie

Chris Shelton—came out of the shower; he subsequently left on a bike. Faircloth discussed and sketched out a tattoo for Lemmie. While they were working on the tattoo, the room occupants got high on meth. While the occupants passed around a pipe, it went missing and some got upset. Faircloth recounted:

"Q. And so when you say they were upset, who appeared upset about the pipe? "A. It seemed like T-Rex [Faircloth's name for Lemmie] and Amber Craig. "Q. And why do you say that? "A. Because they were the ones wanting it. "Q. And so when you say—this conversation about the pipe, did it occur between Amber Craig and T-Rex? "A. I believe it was just an in-general question that they wanted to know where it was. "Q. And when in the course of this evening did that get brought up? "A. Right at the beginning of me getting there starting to clean and draw the pattern. "Q. So when the issue with the pipe is first raised, had the Nebraska gentleman [Loudermilk] left the room yet? "A. I think he did. "Q. Had the gentleman who shaved off his mustache [Shelton], had he left? "A. I believe he did too as well. "Q. Did either Ms. Craig or T-Rex make any statements about what they were going to do to locate this pipe? "A. Not that I recall. "Q. Did you observe them looking around the room for it? "A. Yes, ma'am. "Q. And what did you observe? "A. I just observed Amber Craig looking under a pillow, the side of the bed, looking around where she was sitting and stuff like that. "Q. Did either T-Rex or Amber Craig appear to find this pipe? "A. Not that I know of, no. "Q. Nobody stood up and said I found it, anything like that? "A. No, ma'am."

At one point, Loudermilk and Craig chatted; Faircloth overheard Craig say something to the effect that her "premium rates" were high. Shortly after this, Loudermilk went into the bathroom with Craig for about 20 or 30 minutes. After they left the bathroom, Loudermilk left the room. Craig came and sat on the bed and spoke with Lemmie while Faircloth worked on the tattoo. Faircloth overheard some of this conversation: Craig said she wanted a gold chain; Lemmie said she could have it, but Craig 444 SUPREME COURT OF KANSAS VOL. 311

State v. Lemmie said that Lemmie would have to take it. Craig also injected Fair- cloth with meth while he was tattooing Lemmie. After Faircloth finished Lemmie's tattoo about 4 a.m., Lem- mie asked Faircloth to drop him off at a house on North 12th Street. Faircloth obliged. Faircloth then returned to the Starlite. When Faircloth went back into the motel room, Craig asked him to trade sex for a tattoo. Faircloth agreed. Faircloth and Craig had sex, and then Faircloth took a shower. When Faircloth got out of the shower, Lemmie was back in the room; he had changed into dark clothes. Lemmie asked Craig, "[W]here is he[?]" Craig responded that "he" was asleep in his truck. Lemmie told Craig to "go wake his ass up." Craig went out to the parking lot, then came back inside. Then Lemmie went into the parking lot. Faircloth heard Lemmie say, "I know you got it." Then Faircloth heard multiple gunshots. Craig squatted down in front of the door and said, "I didn't think he would do it." Faircloth asked what happened, and Craig said, "[H]e killed him." Faircloth called 911. Then Faircloth told Craig to take cover in the bathroom; Craig did not listen but instead gathered her possessions in a duffle bag. Craig tried to leave through the front door, but Fair- cloth would not let her. Police arrived on the scene and found Loudermilk dead on the ground near an SUV in the Starlite's parking lot. Police found two .22 caliber casings and five .22 caliber live rounds near the SUV. They discovered $1,100 in Loudermik's pocket. Inside Room 120, police found drug paraphernalia, including a pipe with residue; a syringe; a scale; and a spoon top. On the ground in the alley behind the room, police found a duffle bag containing women's clothing outside a broken window. Police took Faircloth to the police station. He agreed to a DNA swab and a gunshot residue test. He gave oral and written statements. Police presented Faircloth with a photo lineup, and he identified Lemmie as the shooter. Officer Ricardo Garcia testified that he spoke with Faircloth at the scene. Faircloth told Garcia he thought "Tre Mack" shot Loudermilk. Garcia also spoke with Shelton, who returned to the Starlite that morning. Shelton said that "Tre Mack" got a tattoo from Faircloth in Room 120 earlier in the evening. VOL. 311 SUPREME COURT OF KANSAS 445

State v. Lemmie

Garcia used his phone to search online for "Tre Mack" and found a Facebook profile under that name. Officer Michael Baker, another police officer at the scene, recognized the man in the photos from the "Tre Mack" account as Lemmie. During the investigation of Loudermilk's murder, Shelton also identified the man in the "Tre Mack" Facebook pictures as the man who got the tattoo. At trial, Shelton denied identifying Tre Mack's Facebook profile and denied that he said Lemmie was at the motel; he denied ever having seen Lemmie before. Detective Tyler Goldsby testified that after the shooting, he reviewed security footage from a nearby business. The footage showed a white Chevy or GM pickup driving near the scene of the crime at the time of the shooting. As a result, Goldsby notified other officers to be on the lookout for a white Chevy or GM pickup. Detective Chris Venables testified that he was assigned to scan license plates in the area of the Starlite immediately after the shooting to try to locate and apprehend Lemmie. At about 8:30 a.m., he drove into the alley between North 12th Street and North 13th Street. There, he observed a black male with dreadlocks and tattoos backing a white pickup out of a driveway. Knowing police were looking for Lemmie, a black man with dreadlocks and tattoos in a white pickup, Venables got out of his police car and told the driver to stop. When he got out of his car, Venables recognized the driver as Lemmie. Lemmie did not stop, instead speeding away. Venables pursued Lemmie to a parking lot; there Lemmie left the truck and ran around the corner of a building. After chasing Lemmie on foot, Venables and another officer were eventually able to catch and arrest him. Police also arrested Tyi Daniel, the truck's passenger. After the arrests, Venables went back to the house on 12th Street where he had first encountered the pickup. Police obtained a warrant to search the house and surrounding yard. They found a gun case hidden behind a truck bed liner near a fence. It contained a .22 rifle loaded with a live round. In a trashcan a few feet away from the gun, police found Loudermilk's driver's license, Social Security card, birth registration card, and credit card. Inside the 446 SUPREME COURT OF KANSAS VOL. 311

State v. Lemmie house, police found a gold cross necklace and a heart necklace. Police also found a cell phone they believed belonged to Lemmie. Lisa Hollander-Daniel testified that she lived in the home on North 12th Street with her son, Tyi. Tyi owned a white truck. The morning of April 26, 2016, she woke up early and went to the store to get cigarettes. On her way back from the store, about 6:30 a.m., she saw Tyi walking his dog a few blocks from her house. When she got back to her house, she saw Lemmie sitting on her front lawn. She said she did not keep guns at her house, but she admitted that she did not frequently check her son's bedroom to see if he had a gun. Detective Matthew Halton testified that he compiled surveillance footage from the motel and nearby businesses at the time of the shooting. The State played a DVD of that security footage for the jury. The video showed a vehicle parking in an alley near the Starlite shortly before 6 a.m. A different camera then showed a tall dark figure walking up to the door of a Starlite room. The tall, dark figure interacted with at least one other person, a smaller individual, at the door of the motel room. That smaller individual went out to an SUV in the Starlite parking lot near the room, then returned to the room. Several minutes later, the smaller figure and the tall dark figure both went to the SUV. The smaller figure walked back to the room at 6:06 a.m. Shortly after, the video cap- tured two muzzle flashes. After the muzzle flashes, the tall figure ran away from the SUV into the middle of the parking lot before returning to the SUV. The tall figure then ran away from the SUV again, returned again, and then finally ran away from the parking lot for the last time at 6:08 a.m. In all, the tall figure returned twice to the SUV in the 90 seconds following the shooting. The video from other cameras showed a white pickup truck leaving the alley a few minutes later. The State also introduced into evidence a still image of a white pickup driving near the Starlite Motel near the time of the shooting. The pickup had what appeared to be a long gun bag in its bed. The State's trial evidence also included Londono's testimony about obtaining the phone passcodes from Lemmie. Detective An- drew Zeigler detailed obtaining search warrants for Facebook ac- VOL. 311 SUPREME COURT OF KANSAS 447

State v. Lemmie counts under "Amber Craig" and "Tre Mack," and Detective Crys- tal Hornseth described reviewing the Facebook records for the "Tre Mack" account. The State introduced Facebook messages between accounts belonging to "Tre Mack" and "Amber Craig" that read:

Tre Mack, 4:48 a.m.: "I'm goin to get my gun." Craig, 4:49 a.m.: "Ight but I gotta act like I don't know about it . . . he says there's more in his truck . . . but idk." Tre Mack, 5:36 a.m.: "He still in there." Craig, 5:37 a.m.: "Message me." Craig, 5:37 a.m.: "Yeah." Tre Mack, 5:38 a.m.: "Ok otw." Craig, 5:41 a.m.: "Okay we are starting mine now . . . dude is still in car sleeping."

Lemmie renewed his objection to the Tre Mack-Craig Facebook messages "based upon the previous objections [he had] made." The district judge overruled the objection. The State also introduced messages between "Tre Mack" and an account for "KiKi Williams" that read:

Tre Mack, 8:01 a.m.: "Can I cum stay with u for a lil." Williams, 8:09 a.m.: "Are you OK[?] Tre Mack, 8:12 a.m.: "No." Tre Mack, 8:13 a.m.: "Imma do whatever to get there."

Forensic pathologist Erik Krag Mitchell explained to the jury that Loudermilk died from a gunshot that pierced his lungs and aorta. The pathologist recovered a bullet inside Loudermilk's chest. KBI firearm examiner James Stevens testified that the rifle recovered from the backyard of the home on 12th Street fired the bullet found in Loudermilk's body. In its case, the defense called one of Lemmie's cousins, Dorian Flournoy, to the stand. Flournoy testified that the gold cross necklace recovered from Daniels' house was Lemmie's and that he had received it as a gift from his girlfriend. The cousin also testified that the "Tre Mack" Facebook account had been changed since Lemmie was arrested in April 2016. The account now used the name "Timmy Quopo" and showed active posting of content. 448 SUPREME COURT OF KANSAS VOL. 311

State v. Lemmie

Lemmie's ex-girlfriend also testified, saying that she bought him a gold cross necklace in 2013. Lemmie also introduced photographs from 2014 or 2015 that showed him wearing a gold cross necklace. The jury found Lemmie guilty on all counts, and the district judge sentenced him to 83 months for aggravated robbery, 34 months for conspiracy to commit aggravated robbery, 9 months for criminal possession of a firearm, 7 months for fleeing and eluding, 6 months for interference with law enforcement, and life with a minimum of 25 years for first-degree murder. The judge ran all of the sentences consecutive to each other, except for the 6-month sentence for interference with law enforcement, which he ordered to run concurrent to all other counts.

DISCUSSION

Phone Passcodes

Lemmie first argues in this appeal that admission of Lon- dono's testimony about him giving her the phone passcodes violated his Fifth Amendment right against self-incrimination.

"When asked to review the violation of a defendant's Fifth Amendment right against self-incrimination, this court reviews the district court's factual findings using a substantial competent evidence standard, but the ultimate legal conclusion is reviewed as a question of law using an unlimited standard of review." State v. Carapezza, 286 Kan. 992, Syl. ¶ 11, 191 P.3d 256 (2008).

If an error occurred, we apply the constitutional harmlessness standard from State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). Under that standard, an error is harmless if this court is "persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict." State v. Salary, 301 Kan. 586, 607, 343 P.3d 1165 (2015). The testimonial status of passcodes and passwords is a rich and rapidly developing area of law this court has not yet addressed. See generally Sacharoff, Unlocking the Fifth Amend- ment: Passwords and Encrypted Devices, 87 Fordham L. Rev. 203 (2018). However, this court need not plow this ground and whether it supports the existence of error today because, as the VOL. 311 SUPREME COURT OF KANSAS 449

State v. Lemmie

State argues, any possible violation of Lemmie's Fifth Amend- ment right in this case was undoubtedly harmless. At trial, Londono testified that Lemmie provided the passcodes. But no witness testified that anything remotely incriminating was found on those cell phones. In fact, no witness testified about the contents of the cell phones at all. As Lemmie conceded pretrial, the witnesses' discussion of the incriminating Fa- cebook messages could not have been excluded by reliance on his Fifth Amendment argument. Because the admission of Londono's testimony that Lemmie knew the passcodes to the two phones in no way contributed to the jury's verdict in this case, we are assured that the constitutional harmless error standard is met.

Admission of Hearsay Statements

Lemmie next argues that the district judge erred by admitting Faircloth's testimony that immediately after the shooting Craig said, "[H]e killed him," and, further, that she "didn't think he would do it." Lemmie also argues the district judge committed judicial misconduct by asking the State if the contemporaneous statement hearsay exception applied to permit admission of Craig's statements. See K.S.A. 60-460(d)(1) (present sense im- pression); (d)(2) (excited utterance). The district judge granted Lemmie a standing objection to admission of Craig's statements on hearsay grounds at trial, preserv- ing Lemmie's first line of attack for this court's review under K.S.A. 60-404. We may consider allegations of judicial misconduct on appeal absent a contemporaneous objection below. State v. Lyman, 311 Kan. 1, 34, 455 P.3d 393, 416 (2020). Although we question whether Craig's second statement qual- ifies as hearsay—a statement by an out-of-court declarant admitted to prove the truth of the matter asserted—we need not pause to analyze that issue here. Assuming both statements to be hearsay, "This court reviews a trial court's determination that hearsay is admissible under a statutory exception . . . for an abuse of discretion." State v. Summers, 293 Kan. 819, 827, 272 P.3d 1 (2012). "A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based 450 SUPREME COURT OF KANSAS VOL. 311

State v. Lemmie on an error of fact." State v. Moore, 302 Kan. 685, 692, 357 P.3d 275 (2015). With respect to Lemmie's judicial misconduct claims, "[a]ppellate courts have unlimited review over allegations of judicial misconduct," and Lemmie as the party alleging judicial misconduct has the burden to show "that misconduct occurred and that the misconduct prejudiced the party's substantial rights." Lyman, 311 Kan. at 33-34, 455 P.3d at 416. The district judge admitted Craig's statements on two grounds: first, as the statements of a coconspirator under K.S.A. 60-460(i)(2); and, second, as contemporaneous statements under K.S.A. 60-460(d). K.S.A. 60-460(i)(2) provides that the following hearsay statements are admissible:

"a statement which would be admissible if made by the declarant at the hearing if . . . the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination."

Lemmie argues that Craig's statements were not admissible as the statements of a coconspirator because "the conspiracy to rob Mr. Loudermilk was complete when Mr. Loudermilk was shot." According to Lemmie's logic, Craig's statements occurred after the shots rang out and thus were "beyond the scope of the conspiracy." Lemmie provides no authority to support his contention that a conspiracy to commit robbery concludes once shots are fired. And the argument fails on its merits. The security footage of the parking lot showed that, over the course of 90 seconds after the shooting, Lemmie returned twice to the SUV where Loudermilk was dead on the ground. In light of the testimony about the money found in Loudermilk's pocket as well as the messages between Craig and Lemmie about committing a robbery, it is reasonable to conclude that Lemmie returned to Loudermilk's body to search it for money. In other words, he continued to act to complete the robbery while, according to Faircloth, Craig had made her statements "[i]mmediately after the shots" were heard. Thus, based on the evidence, the district judge could reasonably conclude that VOL. 311 SUPREME COURT OF KANSAS 451

State v. Lemmie

Craig made her statements "before [the robbery's] complete execution or other termination." K.S.A. 60-460(i)(2); State v. Sharp, 289 Kan. 72, 105, 210 P.3d 590 (2009) ("a conspiracy exists 'to the disposition of its fruits, and to acts done to preserve its con- cealment'"). The district judge did not abuse his discretion by admitting Craig's statements under K.S.A. 60-460(i)(2). Lemmie next argues that the district judge committed judicial misconduct when he asked the State to address whether Craig's statements also met the contemporaneous statements exception under K.S.A. 60-460(d). That statute allows a judge to admit a hearsay statement if made "[w]hile the declarant was perceiving the event or condition which the statement narrates, describes or explains; [or] while the declarant was under the stress of a nervous excitement caused by such perception." Lemmie argues that by doing so, the district judge effectively took up the State's cause and provided it with a ground for admission it previously failed to consider. This, he argues, violated his right to a fair and impartial trial. This argument also fails. The district judge did not rely only on the contemporaneous statement exception to find Craig's statements admissible. The district judge also relied on the exception already advanced by the State, i.e., the coconspirator exception. A district judge admitting evidence on two grounds, including one originating with the court, when the one already advanced by a party would suffice is not judicial misconduct. Lemmie has not borne his burden to show misconduct that prejudiced his substantial rights. See Lyman, 311 Kan. at 34, 455 P.3d at 416.

Sufficiency of the Evidence

Lemmie also argues that the State introduced insufficient evidence to convict him of first-degree murder.

"When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence 'in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.' . . . A reviewing court 'generally will "not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations."' [Citations omitted.]" State v. Harris, 310 Kan. 1026, 1030, 453 P.3d 1172, 1177 (2019).

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State v. Lemmie

Far more than ample direct and circumstantial evidence in the record supports Lemmie's murder conviction. The State introduced Facebook messages between Craig and Lemmie in which Lemmie said he was going to get his gun and apparently asked about Loudermilk's whereabouts before returning to the motel room. Faircloth testified that Lemmie returned to the motel room shortly before the shooting, told Craig to go "wake [Loudermilk's] ass up," and went outside after Craig returned to the motel room from the parking lot. Faircloth heard Lemmie say, "I know you got it," before hearing multiple gunshots. Hollander- Daniel placed Lemmie at her home shortly after the shooting, where police later recovered the murder weapon and contents of Loudermilk's wallet. And Faircloth identified Lemmie as the shooter both at the scene and in a later photo lineup. The footage from the security cameras in the area depict the commission of the crimes by a person matching Lemmie's description. We need say no more to reject Lemmie's sufficiency claim.

K.S.A. 60-455 Evidence

Lemmie next argues that the district judge erred by admitting Faircloth's testimony that Lemmie was upset over a meth pipe that went missing in the Starlite Motel room. Lemmie preserved this issue for review by objecting to the meth pipe testimony at trial. See K.S.A. 60-404. Generally evidence of a criminal defendant's prior civil or criminal wrongs will not be admitted at trial. K.S.A. 2019 Supp. 60-455(a). Possession of drug paraphernalia is a crime. But the statute provides a list of exceptional scenarios in which a defendant's prior bad acts are admissible, and a three-part test from State v. Gunby, 282 Kan. 39, 56-57, 144 P.3d 647 (2006), guides a trial judge in applying the exceptions.

"The three-part Gunby test that a trial judge must use in determining whether to admit evidence under K.S.A. 2017 Supp. 60-455, the corresponding appellate standards of review, and the trial judge's duty to provide a limiting instruction are as follows: "'First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. VOL. 311 SUPREME COURT OF KANSAS 453

State v. Lemmie

"'Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion. "'Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion. "If the evidence meets all of these requirements, it is admitted, but in a jury trial the district court must give the jury a limiting instruction telling the jury the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose).' [Citations omitted.]" State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018).

Before this court, Lemmie argues that evidence about the missing meth pipe was not relevant, and that it was more prejudicial than probative. Under the test set forth above, we review both contentions under an abuse of discretion standard. At this point, it is helpful to return to the record to review the evidence as it actually was presented to Lemmie's jury. While Faircloth's testimony was inconsistent and meandering, he eventually testified about the meth pipe and the upset that accompanied its disappearance:

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State v. Lemmie

"Q. Did you observe them looking around the room for it? "A. Yes, ma'am. "Q. And what did you observe? "A. I just observed Amber Craig looking under a pillow, the side of the bed, looking around where she was sitting and stuff like that. "Q. Did either T-Rex or Amber Craig appear to find this pipe? "A. Not that I know of, no. "Q. Nobody stood up and said I found it, anything like that? "A. No, ma'am."

And a detective testified that when he interviewed Faircloth, Fair- cloth said "Tre Mack, Amber Craig and [Loudermilk] were smoking meth in the motel room." Faircloth then said that people in the room were upset a meth pipe went missing. The district judge ruled in part the meth pipe testimony was relevant because "the use of methamphetamine, the missing methamphetamine pipe are intertwined as relevant aspects of motive, and the Court is considering as well the . . . . logical connection and necessary connection to the crime and the circumstance." Mo- tive is among the material facts for which other crimes and civil wrong evidence is admissible. K.S.A. 2019 Supp. 60-455(b). We reject Lemmie's arguments that "[t]here is no evidence that the meth pipe was involved in any way with" Loudermilk's death, because Lemmie "is not accused of stealing a meth pipe as a basis of the robbery [underlying the first-degree murder charge]" and questioning whether it is possible to steal something that is "already yours." As the State argued below, Lemmie could easily have had multiple, potentially overlapping motives for robbing and shooting Loudermilk. The district judge did not make an error of fact or law when he concluded the missing meth pipe was relevant to motive; nor was the judge's conclusion arbitrary or unreasonable. On the balance of probative value and prejudice, the district judge ruled that "a limiting instruction would cure any concern the Court would have" and an appropriate instruction was given. Again, we see no abuse of discretion in this process or its conclusion. Lemmie's assertion that evidence of his drug use, particularly methamphetamine use, would generate "universal scorn" among jurors is unconvincing. The most serious of the crimes on which Lemmie stood accused were far more likely to generate such VOL. 311 SUPREME COURT OF KANSAS 455

State v. Lemmie scorn; the evidence that Lemmie was a drug user was minimal in comparison. It is also worth noting that, to the extent drug use ex- erted influence on the jury, it also would have affected the testimony of Faircloth, the State's most valuable witness. And, finally, as outlined above, the meth pipe evidence was probative on motive, helping to explain Lemmie's willingness to target a man who was, before that day, a stranger to him.

Cumulative Error

Lemmie's last appellate argument is that cumulative error deprived him of a fair trial, requiring reversal of his convictions. Even if we assume one nonreversible error with respect to the passcode testimony, cumulative error does not apply. "One error cannot support reversal under the cumulative error doctrine." State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007). In the alternative, if no error exists, the cumulative error doctrine still cannot apply. "When this court finds that no errors were committed, the cumulative error doctrine does not apply." State v. Bollinger, 302 Kan. 309, 324, 352 P.3d 1003 (2015).

CONCLUSION

Any error in admitting evidence of the phone code obtained from Lemmie was harmless. The district judge did not err by admitting any of the other evidence challenged by Lemmie, and sufficient evidence supported his murder conviction. We therefore affirm the judgment of the district court.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,439 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

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State v. Craig

No. 119,660

STATE OF KANSAS, Appellee, v. JOSEPH J. CRAIG, Appellant.

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SYLLABUS BY THE COURT

1. TRIAL—Jury Instructions Considered as Whole—Appellate Review. When reviewing jury instructions, an appellate court considers all the instructions together as a whole and does not isolate any one instruction.

2. SAME—Jury Instruction—Voluntary Intoxication Instruction Not Neces- sary Unless Proof Exists. A court need not give a voluntary intoxication instruction unless sufficient proof exists to establish intoxication to the extent of impairing the defendant's ability to form the requisite intent for the charged crime.

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed May 1, 2020. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, was on the brief for appellant.

Jason B. Oxford, assistant county attorney, Krista Blaisdell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: A jury found Joseph J. Craig guilty of both first- degree felony murder and second-degree intentional murder for a homicide that occurred under the guise of a drug transaction. In this direct appeal, Craig claims the district court erred when it sentenced him on the more serious felony murder instead of declaring a mistrial because the jury convicted him of two murder offenses for the same killing. He also argues the court should have given an instruction on voluntary intoxication since there was testimony he drank alcohol and smoked marijuana before he fired the three gunshots that killed his victim. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Craig, Gabrielle Williams, Robyn Brown, and a fourth person were drinking alcohol and smoking marijuana one evening at Wil- liams' apartment in Junction City. Williams proposed robbing Da- vid Phillips by luring him there for a drug transaction. She thought VOL. 311 SUPREME COURT OF KANSAS 457

State v. Craig someone in the group could get Phillips' gun, take his money and marijuana at gunpoint, and then kill him. The fourth person did not want to be involved, so he left. Later that night, Williams texted Phillips to invite him over. When he arrived, the four smoked marijuana in the bedroom. Williams sat on Phillips' lap. She told him his gun was poking her, so he put it on the floor with his black Carhartt jacket. While he was rolling a marijuana joint, Williams got the gun. Shortly after that, Craig went into the bathroom and Williams followed with the gun. Craig asked if she was "ready to go through with the plan." She shook her head indicating "no." When the two returned, Phillips was still rolling a joint and had his head down. Craig put the gun to Phillips' head and pulled the trigger, but it misfired. Hearing the clicking sound, Phillips looked up and asked Craig to give back his gun. The two men went into the living room. According to Brown, Phillips seemed to think it was some kind of joke. Craig again pointed the gun at Phillips, telling him to get down. At that moment, Williams grabbed Phillips' backpack with marijuana in it and jumped out the window. Brown left through the front door. She saw Phillips kneeling and Craig hovering over him with the gun. After she got out, Brown smoked a cigarette in the parking lot and saw Craig fire three shots into Phillips' head. Williams heard the gunshots while running away. Junction City police discovered Phillips' black Carhartt jacket at Craig's residence. Witnesses indicated Phillips was wearing it when he went to Williams' apartment the night he was killed. The jacket had both Craig's and Phillips' DNA on it. The State charged Craig with first-degree murder under theories of premeditated murder and felony murder, conspiracy to commit first-degree premeditated murder, aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession of a firearm by a convicted felon. At trial, the district court instructed the jury on the charged crimes, as well as second-degree intentional murder as a lesser included offense of first-degree premeditated murder. The jury returned guilty verdicts on all charges except premeditated murder. For the homicide, the jury convicted him of both felony murder and second-degree intentional murder.

458 SUPREME COURT OF KANSAS VOL. 311

State v. Craig

At sentencing, the court dismissed the second-degree murder conviction. It sentenced Craig to life without the possibility of parole for 25 years for the felony-murder conviction and an additional 537 months in prison for the remaining convictions. Craig directly appeals to this court. Jurisdiction is proper. See K.S.A. 2019 Supp. 22-3601(b) (life sentence cases permitted to be directly taken to Supreme Court); K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2019 Supp. 22-3601).

THE TWO MURDER CONVICTIONS FOR THE SAME KILLING

Craig claims the court erred in its handling of the jury's guilty verdicts for felony murder and second-degree intentional murder. First, he argues his due process rights were violated because the jury in his view must have had a reasonable doubt about both the premeditation and felony-murder theories because it found him guilty of second-degree intentional murder. He bases this on the wording of Instruction No. 14. It stated: "If you have a reasonable doubt about the guilt of the defendant as to the crime of murder in the first degree on both theories, then consider whether the defendant is guilty of murder in the second degree." Second, he contends that after the jury was discharged, these two guilty findings were "legally irreconcilable," so the only remedy was to order a new trial. For this, Craig relies on K.S.A. 22- 3421 ("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.") and State v. Hernandez, 294 Kan. 200, 205, 273 P.3d 774 (2012) (when faced with inconsistent verdicts, a trial court has a duty to order the jury to reconsider and correct its verdicts).

Additional facts

At trial, the district court instructed the jury on (1) felony murder, (2) premeditated murder, and (3) intentional second-degree murder as a lesser included offense of premediated murder. Instruction No. 14 addressed the State's two theories for first- degree murder; it stated:

"The State has charged the defendant with one offense of murder in the first degree and has introduced evidence on two theories of proving this crime. VOL. 311 SUPREME COURT OF KANSAS 459

State v. Craig

"When evidence is presented on the two theories of proving the crime charged, you must consider both theories in arriving at your verdict. "In Instruction No. 13, the Court has set out the claims that must be proved by the State before you may find the defendant guilty of premeditated murder. "In Instruction No. 12, the Court has set out the claims that must be proved by the State before you may find the defendant guilty of the killing of a person while the defendant was committing or attempting to commit aggravated robbery. "If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you should enter a verdict of guilty. "If you have a reasonable doubt about the guilt of the defendant as to the crime of murder in the first degree on both theories, then consider whether the defendant is guilty of murder in the second degree." (Emphases added.)

Instruction No. 15 alerted the jury about the lesser included offense of second-degree murder. It stated,

"The offense of premeditated murder in the first degree with which defendant is charged includes the lesser offense of murder in the second degree. "You may find the defendant guilty of first degree murder, second degree or not guilty. "When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only."

Instruction No. 16 addressed the elements of second-degree murder, providing:

"If you do not agree that the defendant is guilty of premeditated murder in the first degree, you should then consider the lesser included offense of murder in the second degree. "To establish this charge, each of the following claims must be proved: "1. The defendant intentionally killed David Phillips. "2. This act occurred on or about the 25th day of January, 2016, in Geary County, Kansas." (Emphasis added.)

Instruction No. 17 described the sequencing of the first-degree murder charge with the second-degree murder charge, stating:

"The defendant is charged with one offense of premeditated murder in the first degree. This verdict instruction will guide you on the verdicts you shall consider. "You may find the defendant guilty of murder in the first degree; or murder in the second degree; or not guilty. "When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only. . . .

460 SUPREME COURT OF KANSAS VOL. 311

State v. Craig

"First, you shall consider whether the defendant is guilty of murder in the first degree. If you find defendant is guilty of murder in the first degree, the Pre- siding Juror shall sign the applicable verdict form and, in addition, you shall then determine the alternative theory or theories contained in [verdict form] Number 5, Number 6 or Number 7. . . . "Second, if you do not find the defendant guilty of murder in the first degree, you should then consider the lesser offense of murder in the second degree as defined in Instruction No. 16. "Third, if you do not find the defendant guilty of second degree murder, you shall find defendant not guilty." (Emphases added.)

Shortly after discharging the jury, the district court questioned the two murder verdicts, saying "I think that we need to talk about that. Maybe not today. But I want the parties to determine and maybe do a little research on where that puts us." At sentencing, the court revisited the issue. Craig moved for a new trial and judgment notwithstanding the verdict. He insisted the jury must have had reasonable doubt on both first-degree murder theories because it convicted him of second-degree murder. He based this on Instruction No. 14's wording. The State contended the felony-murder conviction should stand and serve as the basis for sentencing. It also argued the court should not dismiss the second-degree murder conviction. Instead, the State contended the court should just not sentence him on that conviction. The district court decided the jury must have misunderstood the instructions because they were each legally appropriate. It dismissed the second-degree murder conviction over the State's objection and sentenced Craig for the felony murder over his objection. The State does not cross-appeal the dismissal of the second- degree murder conviction, so that action is not before us.

Standard of review

This issue presents solely a question of law, making de novo review appropriate. See State v. Sprung, 294 Kan. 300, Syl. ¶ 2, 277 P.3d 1100 (2012) ("Whether convictions are multiplicitous is a question of law subject to de novo review."); State v. McKissack, 283 Kan. 721, 733, 156 P.3d 1249 (2007) (noting "the issue of inconsistent verdicts" and the question of "whether such incon- sistency warrants the relief requested" are legal questions).

VOL. 311 SUPREME COURT OF KANSAS 461

State v. Craig

Discussion

We review jury instructions as a whole and do not isolate any one instruction. State v. Sisson, 302 Kan. 123, 130-31, 351 P.3d 1235 (2015). If the instructions properly and fairly state the law as applied to the facts in a case, and the jury could not have been reasonably misled by them, those instructions will not result in reversible error even if they were in some manner erroneous. State v. Brice, 276 Kan. 758, 761, 80 P.3d 1113 (2003). The elements of felony murder are: (1) "the killing of a human being" and (2) that killing is "committed . . . in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2019 Supp. 21-5402(a)(2). The elements of second-degree intentional murder are: (1) "the killing of a human being" and (2) that killing is "committed . . . intentionally." K.S.A. 2019 Supp. 21-5403(a)(1). The Kansas felony-murder statute only requires proof that the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. Intent to kill is not an element of felony murder. State v. Patterson, 311 Kan. 59, 455 P.3d 792, 798 (2020). "It is felonious intent, rather than homicidal intent, that provides the malice and intent required for a first-degree felony-murder conviction." State v. Seba, 305 Kan. 185, 196, 380 P.3d 209 (2016). Instruction No. 12 correctly informed the jury about the elements of felony-murder. It stated "[t]o establish [the felony murder] charge, each of the following claims must be proved: 1. The defendant, or another, killed David Phillips," and "2. The killing was done while defendant was committing or attempting to commit aggravated robbery. . . ." As the district court noted, the instructions defining both felony murder and second-degree murder were legally and factually appropriate. And there is no claim otherwise. Instruction No. 14 correctly stated that if the jury had a reasonable doubt about Craig's guilt as to the first-degree murder charge on both theories, then it should consider whether he was guilty of second-degree murder. And Instructions No. 15, No. 16, and No. 17 indicated if the jury had a reasonable doubt about Craig's guilt for premeditated murder, then it should consider the second-degree murder crime. See State v. McLinn, 307 Kan. 307, 462 SUPREME COURT OF KANSAS VOL. 311

State v. Craig

324, 409 P.3d 1 (2018) (second-degree intentional murder is a lesser included offense of first-degree premeditated murder); K.S.A. 2019 Supp. 21-5109(b)(1) (no lesser degrees of felony murder). But the jury obviously thought it could convict Craig of both felony murder and second-degree murder simultaneously, despite being told in Instruction No. 14 to consider second-degree murder if it had a reasonable doubt on both theories of first-degree murder. Such a belief seems plausible given that Instruction Nos. 16 and 17 told it to consider the second-degree murder offense if it did not find Craig guilty of premeditated murder. And, of course, it acquitted him of that offense. Even so, all instructions were legally correct. The jury's second-degree murder verdict does not prove, as Craig contends, that the jury must have had a reasonable doubt about the elements of felony murder. Instead, it shows the jury followed Instruction Nos. 16 and 17 and had a reasonable doubt Craig committed premeditated murder. The Due Process Clause of the Fourteenth Amend- ment requires proof beyond a reasonable doubt of each element of the crime charged. See State v. Douglas, 230 Kan. 744, 745, 640 P.2d 1259 (1982). And for the reasons explained, the discrepancy Craig asserts does not establish that the jury failed to find each element of the felony murder beyond a reasonable doubt. Craig's second argument asserts that a new trial is required because the verdicts were irreconcilable. It fails as well. In the case Craig relies on, Hernandez, 294 Kan. at 207, there were irreconcilable verdicts when a jury convicted the defendant of both aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child based on the same conduct. 294 Kan. at 205-06. The Hernandez court held those verdicts were "legally and factually inconsistent" because "[t]he trial court could not legally enter judgment on either verdict because the jury's finding on the other verdict precludes such judgment." 294 Kan. at 207. It determined the trial court erred by assuming it reconciled the conflicting verdicts at sentencing "as if the charges had been brought in the alternative, or as if the charges merged so that the defendant was only convicted of the greater offense." 294 Kan. at 207. The Hernandez court held the trial court should have ordered the jury to reconsider and correct its verdicts. 294 Kan. at 204-05. VOL. 311 SUPREME COURT OF KANSAS 463

State v. Craig

And since that did not happen, the court reversed the convictions and remanded the case for a new trial. 294 Kan. at 207. But unlike Hernandez, Craig's two murder verdicts are not inherently irreconcilable. See 294 Kan. at 204 ("It is a legal impos- sibility to both attempt the commission of a crime and complete the commission of the same crime, because the failure to complete commission of the crime is an element of attempt."). Premeditated murder and felony murder are separate theories of the same offense, i.e., first-degree murder. State v. Thach, 305 Kan. 72, 87, 378 P.3d 522 (2016); K.S.A. 2019 Supp. 21-5402(d) (felony murder is an alternative method of proving murder in the first degree and is not a separate offense of premeditated murder). And second-degree intentional murder is not mutually exclusive from premeditated murder, but simply a lesser degree of the same offense, i.e., premeditated murder. McLinn, 307 Kan. at 324. We also note the district court did not err by discharging the jury without having it clarify its verdict, as Craig's appellate brief might be read to suggest. See K.S.A. 22-3421 ("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."). As discussed above, there was no defect because the jury found each required element of both offenses. And since Craig cites K.S.A. 22-3421, but offers no rationale why these circumstances implicate it, we hold there was no defect in form. The instructions permitted the jury to end up where it did. K.S.A. 22-3421 has no application here. To sum up, Craig fails to demonstrate either claim: that his first-degree murder sentence was imposed in violation of his due process right to have the jury find each element of the offense beyond a reasonable doubt, or that the jury's first- and second-degree murder verdicts were so irreconcilable as to require a new trial. The court properly sentenced Craig on the first-degree felony- murder conviction. See State v. Harris, 310 Kan. 1026, 453 P.3d 1172 (2019) (upholding the district court's imposition of sentence on a more severe crime when jury convicted defendant of two offenses based on the same criminal act).

464 SUPREME COURT OF KANSAS VOL. 311

State v. Craig

THE VOLUNTARY INTOXICATION INSTRUCTION

Craig claims the evidence about his use of alcohol and marijuana and unclear communication shortly before the shooting made it appropriate to give a voluntary intoxication instruction. We disagree.

Standard of review

An appellate court reviews instructional error claims in multiple steps. First, it decides whether the issue was properly preserved. Sec- ond, it considers whether the instruction was legally and factually appropriate. It exercises unlimited review of these questions. And when the reviewing court finds error, it considers whether that error is reversible. State v. Gentry, 310 Kan. 715, 720, 449 P.3d 429 (2019). If the defendant failed to properly request the instruction in the district court, the clearly erroneous standard applies to whether an instructional error is reversible. See K.S.A. 2019 Supp. 22-3414(3) ("No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous."); State v. Murrin, 309 Kan. 385, 392, 435 P.3d 1126 (2019) (clear error for unpreserved instructional error claim). Craig agrees he did not request this instruction during trial.

Discussion

While not a defense to general intent offenses, voluntary intoxication may be used to negate the intent element of specific intent crimes. Seba, 305 Kan. at 211. K.S.A. 2019 Supp. 21-5205(b) declares:

"An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind."

Craig claims a voluntary intoxication instruction would have been legally appropriate for the charged offenses of premeditated murder, second-degree murder, conspiracy to commit premeditated murder, and conspiracy to commit aggravated robbery. Of those, premeditated murder and second-degree intentional murder are specific intent crimes. State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 (2009) ("'The VOL. 311 SUPREME COURT OF KANSAS 465

State v. Craig specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation.'"); State v. Deal, 293 Kan. 872, 883, 269 P.3d 1282 (2012) (intentional second-degree murder is a specific intent crime). But the remaining conspiracy offenses are not as obvious, and they are the only convictions that could be affected by this appeal. Some caselaw undercuts Craig's claim that conspiracy to commit aggravated robbery is a specific intent crime. He relies on State v. War- ren, 252 Kan. 169, 174, 843 P.2d 224 (1992), in which the court held conspiracy to commit a robbery was a specific intent crime. But in State v. Butler, 307 Kan. 831, 852, 416 P.3d 116 (2018), the court held that the mental state needed to be proved for convicting the defendant for conspiracy to commit aggravated robbery was "'knowingly.'" We need not resolve that question, however, because the record demonstrates a voluntary intoxication instruction was not factually appropriate in Craig's case, so this claim of error fails on that basis. A court need not give a voluntary intoxication instruction unless sufficient proof exists to establish intoxication to the extent of impairing the defendant's ability to form the requisite intent for the charged crime. State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014); see also State v. Becker, 311 Kan. 176, Syl. ¶ 6, 459 P.3d 173 (2020) (need for "direct evidence" of impairment in a premeditated first-degree homicide trial). That evidence is lacking in Craig's case. The trial evidence on which Craig relies comes from the testimony of Williams and Jeremiah Warren, the person who left before Phillips came to the apartment. Both made passing comments about Craig drinking alcohol and smoking marijuana the evening Phillips died. Williams testified everyone was smoking marijuana and drinking alcohol, and when she was in the bathroom with Craig just before the shooting, he was "mumbling to himself." But the record is silent about how much marijuana and alcohol Craig consumed or whether this "mumbling" happened only when he was intoxicated to the level of impairing his ability to form specific intent. In State v. Hilt, 299 Kan. 176, 193, 322 P.3d 367 (2014), the court held evidence pointing to consumption, but not intoxication to the extent that the defendant's ability to form the requisite intent was impaired, was not enough to warrant a voluntary intoxication instruction. 466 SUPREME COURT OF KANSAS VOL. 311

State v. Craig

See Becker, 459 P.3d at 184 (a reviewing court will not infer impairment based on evidence of consumption alone). And in State v. Kidd, 293 Kan. 591, 596, 265 P.3d 1165 (2011), the court held evidence showing the defendant consumed alcohol, made "'crazy' statements" and seemed "'buzzed'" was insufficient to require a voluntary intoxication instruction. In State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011), the court determined evidence of alcohol and marijuana consumption and testimony that the defendant was "'high' or 'intoxicated'" was not sufficient to require a voluntary intoxication instruction. Similarly, Williams' testimony is not enough to justify the instruction. Craig also relies on Warren's statements that he observed Craig "in an extreme state of intoxication shortly before the shooting occurred." He points out Warren's testimony that Craig was unable to stand or communicate clearly. But the record reflects this testimony, when read in context, does not necessarily show Craig was extremely intoxicated that night. At most, it appears, neutral or ambiguous about Craig's impairment. During his cross-examination, defense counsel asked Warren "how intoxicated was Mr. Craig on that evening?" He answered, "Pretty drunk. He was sitting down." Counsel then asked "do you mean that he was so intoxicated he couldn't stand up?" Warren responded "he was on the bed laying down with his eyes closed. I had to nudge him a little bit to get up. So, I don't know if he was just tired and drunk at the same time, or if he was just that drunk." This back-and-forth cannot show Craig lacked the ability to form the requisite intent, and Brown's testimony describing the moment immediately before the killing is also pertinent. She said Craig "was just relaxed, just sitting. We was [sic] all high." The evidence about Craig's state of mind does not establish any impairment deprived him of the ability to form the requisite mens rea. Indeed, other evidence strongly suggests he was not so intoxicated and was able "to reason, to plan, to recall, or to exercise motor skills." Betancourt, 299 Kan. at 142. For example, when discussing the plan, according to Williams, he "was stating that he wanted [Phillips'] gun." This suggests he could think and communicate what he wanted to get by robbing and killing his victim. And by all accounts, Craig was also able to walk to the bathroom and back to the bedroom without anyone's assistance, meaning he could exercise motor skills. Craig and Williams VOL. 311 SUPREME COURT OF KANSAS 467

State v. Craig discussed their plan before 7 p.m., and he remembered and success- fully carried it out after 11 p.m. Nothing in the record points to memory loss or inability to recall events before or during the commission of the crimes. See Betancourt, 299 Kan. at 141 (loss of memory or inability to recall incidents before or during the commission of the crime may show an inability to form the required intent). When he pulled the trigger, Craig was capable of processing that the gun misfired and recover from that with another attempt. See 299 Kan. at 142-43 (while there was evidence of consumption of alcohol and cocaine and the defendant's own statement that he was "'pretty effed up,'" there was other evidence showing he could mentally and physically function; holding no error to omit a voluntary intoxication instruction); Hilt, 299 Kan. at 193 (noting evidence showing the defendant was high and made crazy statement; holding no error based on other evidence suggesting the ability to form specific intent). Finally, we observe there was not much made of Craig's intoxication at trial. Defense counsel briefly mentioned Craig was drunk and high during closing argument but certainly did not argue its signifi- cance or any implication to the jury. Stated differently, Craig never relied on voluntary intoxication in defending himself. See Betancourt, 299 Kan. at 143 (noting defense did not emphasize evidence of intoxication introduced at trial or argue voluntary intoxication to the jury). His effort to create an alternate reality on appeal is unavailing. From this record, we hold a voluntary intoxication instruction would not have been factually appropriate.

Affirmed.

MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,660 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

468 SUPREME COURT OF KANSAS VOL. 311

State v. Randle

No. 119,720

STATE OF KANSAS, Appellee, v. RITCHIE D. RANDLE, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Jury Instruction Error Claims—Multiple Steps—Appellate Re- view. An appellate court reviews instructional error claims in multiple steps. First, it decides whether the issue was properly preserved. Second, it considers whether the instruction was legally and factually appropriate. It exercises unlimited review of these questions. And when the reviewing court finds error, it considers whether that error is reversible. If the defendant properly requested the instruction in district court, the State must establish there is no reasonable probability the error's absence would have changed the verdict. The appellate court considers the entire record de novo when deciding whether the State met this burden.

2. SAME—Admission or Exclusion of Hearsay Statements—Appellate Review. An appellate court generally reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion. But when the adequacy of the legal basis for the trial court's evidentiary ruling is challenged, the appellate court reviews that ruling de novo.

3. SAME—Evidence—Hearsay Admissible if Fits Statutory Exceptions. Hear- say is evidence of a statement made by someone other than a testifying witness at a hearing that is offered to prove the truth of the matter stated. Hear- say is not admissible unless it fits within one or more of the statutory exceptions in K.S.A. 2019 Supp. 60-460.

4. SAME—Admission of Photographic Evidence—Appellate Review. An appellate court reviews the admission of photographic evidence by first determining whether the challenged photos were relevant. If they are relevant, and a challenging party's objection is based on a claim that the photographs were overly repetitious, gruesome, or inflammatory, i.e., unduly prejudicial, the standard of review is abuse of discretion. The burden of showing an abuse of discretion rests with the party asserting the error.

5. CRIMINAL LAW—Sentencing Court—Reason for Departure—Appellate Review. An appellate court applies an abuse of discretion standard of review to determining whether a sentencing court erred in concluding that a mitigating factor constituted a substantial and compelling reason to depart in a particular case.

6. SAME—Sentencing Court—Use of Mitigating Factors to Justify Departure Sentence. Mitigating factors that may justify departure in one case may not justify a departure in other cases.

VOL. 311 SUPREME COURT OF KANSAS 469

State v. Randle

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed May 1, 2020. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: A jury convicted Ritchie D. Randle of first-degree murder and criminal discharge of a firearm. In this direct appeal, Randle advances various trial error claims involving jury instructions, hearsay evidence, and the admission into evidence of graphic photographs and crime scene video. He also challenges the district court's denial of his motion for departure sentencing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, Troy Rodriguez was in his Wichita apartment when he heard gunshots. He went outside and saw a man at the bottom of a stairwell running away from the apartment complex. Rodri- guez discovered an apartment with its door and windows shot out. Timothy Golden was lying on the kitchen floor in "a pool of blood." Police located 21 shell casings of three different calibers. Surveillance videos showed three young men, with their faces partially covered and handguns seemingly in their pockets, approach and later flee from the apartment's immediate vicinity. One man could be seen with a GPS monitoring device on his ankle. The location data from that device revealed this person was Randle. The other two were later identified as Larry Triplett III and Dakahri Saunders. Police collected a small piece of black fabric that later revealed a DNA profile with mixtures of at least three people. At trial, a DNA technician testified Randle could not be excluded as a major contributor to this profile. A jury convicted Randle of first-degree premeditated murder and criminal discharge of a firearm. The district court sentenced him to life imprisonment without possibility of parole for 50 years 470 SUPREME COURT OF KANSAS VOL. 311

State v. Randle for the murder with a 13-month consecutive term for the firearm conviction. On appeal, Randle claims the district court erred by: (1) refusing to instruct the jury on unintentional but reckless second- degree murder as a lesser included offense of first-degree murder; (2) allowing hearsay statements into evidence; (3) admitting graphic photographs and video into evidence; and (4) denying a sentencing departure. Jurisdiction is proper. See K.S.A. 2019 Supp. 22-3601(b) (listing criminal cases permitted to be directly taken to Supreme Court); K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2019 Supp. 22-3601).

THE LESSER INCLUDED OFFENSE INSTRUCTION

Randle argues the district court should have given his requested jury instruction on unintentional but reckless second-degree murder as a lesser included offense of first-degree premeditated murder. Some background is helpful.

Additional facts

At trial, the State introduced a recorded jailhouse phone call between Randle and two women as evidence over a defense objection. He repeatedly mentioned the name "Dakahri," who he claimed killed Golden. When one woman asked Randle what he had done at the apartment, he answered he "shot." A crime scene investigator testified about the measures taken to track the trajectories of the bullets fired into the apartment. She said "many" of the "defects" caused by bullet strikes focused on the wall behind the couch. A trajectory analysis indicated those shots came in from the front window. She noted there was no in- dication shots were fired straight back into the apartment; rather, they were fired from both corners at the front of the apartment at angles away from the shooters, establishing a crossfire pattern. The photographic evidence shows the window curtains partially open and the Venetian-style blinds down with some slats tilted open. The window glass and blinds were badly damaged by the gunfire. VOL. 311 SUPREME COURT OF KANSAS 471

State v. Randle

Randle did not testify or offer evidence. Defense counsel requested a lesser included offense instruction on unintentional but reckless second-degree murder. He argued the State failed to show Randle knew Golden was inside. The court denied the requested instruction as not factually appropriate. It noted: (1) there was no testimony demonstrating Randle or his codefendants did not intend to kill Golden; (2) the recorded jail call showed the oppo- site—Saunders shot Golden, and Randle shot too; (3) three armed men fired several shots at Golden who was unarmed; and (4) the shooting occurred from angles creating a crossfire pattern. Based on this, the district court found no evidence supporting a claim Randle unintentionally but recklessly killed Golden. The court instructed the jury on premeditated first-degree murder and intentional second-degree murder as a lesser included offense.

Standard of review

An appellate court reviews instructional error claims in multiple steps. First, it decides whether the issue was properly preserved. Second, it considers whether the instruction was legally and factually appropriate. It exercises unlimited review of these questions. And when the reviewing court finds error, it considers whether that error is reversible. If the defendant properly requested the instruction in district court, as Randle did, the State must establish there is no reasonable probability the absence of the error would have changed the verdict. The appellate court considers the entire record de novo when deciding whether the State meets this burden. State v. Gentry, 310 Kan. 715, 720, 449 P.3d 429 (2019). See generally State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011) (reversibility inquiry's test and degree of certainty in detail).

Discussion

Randle properly preserved this issue by timely requesting the instruction. And the requested instruction was legally appropriate. See Gentry, 310 Kan. at 721 (unintentional second-degree murder is a lesser included offense of first-degree premeditated murder). Our questions are whether the requested instruction was factually 472 SUPREME COURT OF KANSAS VOL. 311

State v. Randle appropriate, and if so, whether the district court's refusal to give it was harmless error. At the outset, we need to do some light housekeeping. The State contends we should view the evidence in the light most favorable to the prosecution when making the factual appropriateness inquiry. It relies on State v. Fisher, 304 Kan. 242, 258, 373 P.3d 781 (2016), which stated "[i]f, after a review of all the evidence viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty of the lesser crime, failure to give the instruction is error." (Emphasis added.) The State attempts to exploit this statement to its advantage, even though the Fisher court cited State v. Armstrong, 299 Kan. 405, 433, 324 P.3d 1052 (2014), which in turn referred to State v. Plummer, 295 Kan. 156, 161-62, 283 P.3d 202 (2012). And the Plummer court actually held,

"[A] district court does not err in refusing to give a lesser included offense instruction on a crime which is unsupported by the evidence in that particular case. Such an inquiry is closely akin to the sufficiency of the evidence review frequently performed by appellate courts in criminal cases where '"the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact- finder could have found the defendant guilty beyond a reasonable doubt."' Of course, where the defendant has requested the lesser included offense instruction, the evidence should be viewed in the light most favorable to the defendant. [Citations omitted.]" (Emphasis added.) 295 Kan. at 161-62.

The misstatement in Fisher is simply that. It is unsupported by our caselaw and to that extent must be disapproved. Indeed, the Fisher court itself properly recited the rule elsewhere in its opinion when setting out the framework for analyzing jury instruction claims. And it did so just a few sentences before using the errant language we now correct. See 304 Kan. at 257 (quoting State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 [2015]). As noted in Plummer and its progeny, when the defendant requests a lesser included offense instruction, an appellate court reviews the evidence in the light most favorable to the defendant. As for the merits, Randle advances two reasons why he believes the instruction was factually appropriate. First, he claims he could not have known Golden was inside when the trio started VOL. 311 SUPREME COURT OF KANSAS 473

State v. Randle shooting because of the positioning of the window curtains and blinds. This is based on admittedly ambiguous photographic evidence depicting the lines of sight into the apartment through the damaged window. Second, Randle points out the jury had to find he acted recklessly in convicting him of criminal discharge of a firearm. After studying the parties' back and forth on these points, we concede some uncertainty with simply dismissing Randle's arguments, especially since it is possible reasonable people might disagree about what the photographs show. Accordingly, we will assume without deciding error in failing to give the requested instruction and transition to a reversibility analysis. See State v. Solis, 305 Kan. 55, 67, 378 P.3d 532 (2016) ("[A]ny debate over the factual appropriateness of lesser included offense instructions involving reckless or unintentional conduct would be an academic exercise."). We hold this assumed error was harmless. First, overwhelming evidence bolsters Randle's first-degree premeditated murder conviction. Factors considered to decide whether evidence supports an inference of premeditation include:

"'"(1) [T]he nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.[Citations omitted.]"'" State v. Louis, 305 Kan. 453, 459, 384 P.3d 1 (2016).

In Randle's case, his premeditated murder conviction is supported by: (1) the apartment complex surveillance videos showing three men with their faces partially covered and handguns in their pockets approaching and fleeing from the immediate vicinity of the crime scene, demonstrating the incident was planned; (2) the 21 shell casings police found, suggesting the guns were not fired by accident; and (3) the bullet strikes focused on the wall behind the couch and the trajectory analysis established a crossfire pattern, indicating the shooting was not random. And Randle's participation was established by the monitoring ankle bracelet data, the crime scene DNA evidence, and Randle's jailhouse admission that he "shot." Given all of this, there is no reasonable probability the trial's outcome would have changed had the requested lesser included offense instruction been given. 474 SUPREME COURT OF KANSAS VOL. 311

State v. Randle

Second, as the State argues, the given instructions provided the jury with a choice between first-degree premeditated murder and second-degree intentional murder. And the jury convicted Randle of the more severe crime that required a premeditation finding. Louis, 305 Kan. at 459 ("'Premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation.'"). In State v. Carter, 305 Kan. 139, 380 P.3d 189 (2016), the jury received instructions on first-degree premeditated murder and intentional second-degree murder. The Carter court held "[t]he fact that Carter's jury found him guilty of premeditated first-degree murder means it never reached intentional second-degree murder and, likewise, would not have reached reckless second-degree murder. Reversal for the judge's failure to instruct sua sponte on reckless second-degree murder is not required." 305 Kan. at 164; see also Gentry, 310 Kan. at 730 ("There is no question that if the jury had unanimously found Gentry guilty of first-degree premeditated murder, we would find the instructional error [refusing a requested instruction on unintentional but reckless second-degree murder] harmless under these facts."); State v. Barrett, 309 Kan. 1029, 1039, 442 P.3d 492 (2019) (the skip rule "is not an auto- matic harmlessness pass," but "the logical deduction inherent in the skip rule is one factor, among many, to be considered as part of the applicable harmlessness test"). We hold the assumed error in not giving the requested instruction was harmless.

THE ALLEGED HEARSAY STATEMENTS

Randle claims the district court erred by allowing the State to introduce two hearsay statements, neither of which, he argues, fit a hearsay rule exception under K.S.A. 2019 Supp. 60-460. There are two statements at issue. The first was when Erin Rogers, Da- kahri Saunders' mother, testified Saunders asked her "where [she] put the gun." The second was when Wichita Police Detective Michelle Tennyson testified Jonavon Phillips, the victim's best friend, told her that Triplett called Phillips and "ask[ed] him where VOL. 311 SUPREME COURT OF KANSAS 475

State v. Randle

[Golden] is at or where [Golden] lives." Again, some background helps.

Additional facts

(1) Rogers testified Saunders asked her "where [she] put the gun." Saunders lived with his mother. And the Sunday after the shooting, Rogers found a handgun on her couch that she had never seen before. She contacted Saunders and told him to get it out of her house. Saunders returned home after his mother had gone to bed. He woke her up and asked "where [she] put the gun." She told him where he could find it. Before trial, defense counsel filed a motion in limine asking that any statements sought for admission as those made by a coconspirator comply with K.S.A. 2019 Supp. 60-460(i)(2) ("As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . the party and the declarant were participating in a plan to commit a crime . . . and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination."). The district court had a pretrial hearing on the motion. The State argued Saunders' question about the gun's location was in the form of an inquiry, so it was not hearsay. Defense counsel countered that regardless of its inquisitive nature, the coconspirator exception did not apply since the words were uttered after the shooting and murder were completed. The court took the matter under advisement. The district court ruled shortly before Rogers was to testify. The State clarified that it intended for the question to establish a connection between Saunders and the gun. The court concluded the testimony was not hearsay because it did not contain a factual assertion that could be true or false. It noted, "Statements used circumstantially to give rise to an indirect inference but not to prove the matter asserted are not hearsay." The trial resumed and counsel lodged a contemporaneous objection that was overruled. See K.S.A. 60-404 (for erroneous admission of evidence, timely objection is required).

476 SUPREME COURT OF KANSAS VOL. 311

State v. Randle

(2) Detective Tennyson testifying Phillips told her Triplett "ask[ed] him where [Golden] is at or where [Golden] lives."

At trial, the State advised the court it wanted to admit Phillips' statement about a question one of the codefendants, Triplett, asked Phillips during a phone conversation a few hours before the shooting. Triplett had asked Phillips if he knew where Golden lived, to which Phillips responded he did not. The court found Triplett's inquiry to Phillips was not hearsay, referring to its previous ruling on Saunders' out-of-court question to his mother. But when the State asked about the conversation at trial, Phil- lips denied it occurred. The State then called Detective Tennyson, who testified Phillips told her Triplett called him and "ask[ed] him where [Golden] is at or where [Golden] lives." Defense counsel timely objected on hearsay grounds. The court again ruled the statement was not hearsay.

Standard of review

An appellate court generally reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion. But when the adequacy of the legal basis of the court's evidentiary ruling is challenged, an appellate court reviews that ruling de novo. State v. Bowen, 299 Kan. 339, 349, 323 P.3d 853 (2014); State v. Cosby, 293 Kan. 121, Syl. ¶ 1, 262 P.3d 285 (2011); see also State v. Race, 293 Kan. 69, 75-76, 259 P.3d 707 (2011).

Discussion

Hearsay is "evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated." It is inadmissible unless it fits within one or more of the statutory exceptions listed in K.S.A. 2019 Supp. 60-460. The theory behind the rule is that when a statement is introduced as evidence for the truth of the matter asserted, the declarant's credibility is the basis for its reliability, and the declarant must be subject to cross-examination. Race, 293 Kan. at 76. If an out-of-court statement is offered for some other reason, it is not hearsay. For instance, a statement offered to prove merely that the statement was made is not hearsay. 293 Kan. 69, Syl. ¶ 1. VOL. 311 SUPREME COURT OF KANSAS 477

State v. Randle

The State argues it offered Saunders' question to his mother to establish a connection between Saunders and the gun—not to prove the gun's location. And by producing Phillips' statement through the detective, the State sought to introduce Triplett's question about Golden's whereabouts to show Triplett was looking for him the day of the murder. But Randle insists both were inadmissible hearsay because they were offered to show the truth of the matter asserted in them—"the existence of the gun and Saunders' possession of it" and the fact "Phillips had received a phone call from Triplett in which Triplett had asked where he could find Golden." The statutory term "'[s]tatement' means not only an oral or written expression but also nonverbal conduct of a person intended by him or her as a substitute for words in expressing the matter stated." K.S.A. 60-459(a). The expression's form does not matter; a question-like expression can be a statement under K.S.A. 60-459(a). See Cosby, 293 Kan. at 127-28 (holding defendant's question to police officer was an out-of-court statement subject to hearsay rules). So even if Saunders' out-of-court inquiry is construed to infer he possessed a gun that was in the house, it was not hearsay because the State did not offer it to prove that. The evidence in support of the gun's existence was provided by Rogers' testimony that she saw it in the house. And by presenting Saun- ders' inquiry, the State simply sought to establish the gun had some connection with Saunders because he was looking for it. A statement is not hearsay if it is "used circumstantially as giving rise to an indirect inference but not as an assertion to prove the matter asserted." Boldridge v. State, 289 Kan. 618, 634, 215 P.3d 585 (2009). As for Phillips' out-of-court statement, it presents a double hearsay concern. The first layer, Triplett's out-of-court inquiry to Phillips, was not hearsay because it too was only used circumstantially to raise the inference that Triplett was looking for Golden. The second layer arises from the way the State got Phillips' account of the inquiry into evidence. At trial, Phillips was not the person who testified about this—Detective Tennyson was. And the State offered Tennyson's testimony about the exchange to 478 SUPREME COURT OF KANSAS VOL. 311

State v. Randle prove the truth of the matter asserted, i.e., that Triplett asked Phil- lips about the victim's whereabouts. This is classic hearsay. But K.S.A. 2019 Supp. 60-460(a) allows hearsay to be admitted if it is "[a] statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness." And Phillips was present at trial and available for cross-examination. In fact, Phillips denied making the statement when asked about it at trial. The district court did not err by admitting Tennyson's testimony about the conversation. We hold the district court did not err by admitting the two out- of-court statements.

THE PHOTOGRAPHIC AND VIDEO EVIDENCE

Before trial, defense counsel filed a motion to limit photographic evidence, so that any gruesome photographs were not unduly repetitious or cumulative and had probative value greater than the risk for undue prejudice. The district court allowed eight autopsy photos, a video, and two photos investigators took of Randle at the time of questioning.

Standard of review

When reviewing a trial court's admission of photographic evidence, an appellate court first determines whether that evidence was relevant. If so, the appellate court reviews for abuse of discretion whether the evidence was overly repetitious, gruesome, or inflammatory, i.e., unduly prejudicial. The party asserting the error bears the burden of showing an abuse of discretion. State v. Wil- liams, 308 Kan. 1320, 1333, 429 P.3d 201 (2018).

Autopsy photos

There were 128 photographs from the autopsy. Of those, the State offered eight as trial evidence. The district court agreed to admit them over defense objections. The court reasoned the photos were relevant, were not too gruesome, repetitious, or unduly prejudicial, and would help the jury understand the medical testimony. Randle claims the court erred by not excluding the autopsy VOL. 311 SUPREME COURT OF KANSAS 479

State v. Randle photos. He argues the coroner's black-and-white diagram could have communicated the same information to the jury in a more reasonable, less inflammatory manner. Photographic evidence is relevant and generally admissible because it has a reasonable tendency to prove material facts. But admitting gruesome evidence simply to inflame the jury is error. State v. Tague, 296 Kan. 993, 1002, 298 P.3d 273 (2013). Autopsy photos are inherently gruesome, but they assist a pathologist in explaining the injuries and cause of death. In murder cases, admitting such evidence is rarely held to be an abuse of discretion. Williams, 308 Kan. at 1333- 34. "Gruesome crimes result in gruesome photographs." State v. Green, 274 Kan. 145, 148, 48 P.3d 1276 (2002). In Randle's case, the court reviewed all 128 autopsy photographs before admitting the eight. It noted those eight did not "include the in- ternal examination . . . course of travel of bullets through the body, [and] organs that have been removed." See State v. Pennington, 276 Kan. 841, 850, 80 P.3d 44 (2003) (discussing cases in which the court held trial courts abused their discretion by admitting unduly gruesome and repetitive photographs; noting "[t]he common theme in these cases is that the photographs graphically displayed the victim's organs after the body was cut open during the autopsy"). Only a few of the available photos were selected to explain the nature and extent of the fatal injuries, their location on the body, and the coroner's opinions based on the injuries depicted. And this evidence corroborated the corner's testimony in a way the black-and-white diagram could not. See Williams, 308 Kan. at 1332-35. Randle also argues the admitted photos were unnecessary because he did not contest Golden's injuries, but this argument is unavailing. The prosecution had the burden to prove beyond a reasonable doubt all elements of the crime charged, including the fact and manner of the death and its violent nature, even if those limited aspects of the case were undisputed. 308 Kan. at 1334. No error occurred.

The video

Defense counsel also objected to a six-minute crime scene video. It shows Golden's body as a police officer checked for a pulse, as well as pooled, smeared, and spattered blood around the body. No 480 SUPREME COURT OF KANSAS VOL. 311

State v. Randle gunshot wounds were visible. Emergency medical personnel can be seen arriving. The district court found the video relevant. It noted the video did not show the victim's face or open wounds, was not overly gruesome, and uniquely showed the apartment layout, the apartment complex, and the crime scene. The court ruled its probative value outweighed its prejudicial effect. The State raises a preservation concern. It claims defense counsel simply said at trial he would like to "renew my ante- mortem objection." In the State's view that specifically referred to the defense's "Motion to Suppress Ante-Mortem Photographs of the Decedent," which differed from the motion to limit photographic evidence that included the video. At trial, just before the State introduced the video, counsel promptly objected to its admission, although he misspoke as to the specific grounds on which he was objecting. But in this instance the court knew the issue associated with the video and had the opportunity to rule on it. See State v. Spagnola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012) (noting the rationale underlying the contemporaneous objection rule is that stating objection and grounds allows a district court to preclude improper evidence from affect- ing the decision). We hold the purposes of the contemporaneous objection rule under K.S.A. 60-404 were fulfilled under these circumstances, and the issue was preserved for appellate review. Moving to the merits, Randle argues the video was of minimal probative value because any purpose for it was already covered by the autopsy photos and those of the apartment interior. He insists the video was unduly prejudicial because it was merely repetitious and showed large amounts of blood. But the video was only six minutes and eight seconds long; and it allowed the jury to view the crime scene, the apartment complex layout, and the path the shooters traveled as they approached Golden's residence. It also provided a panoramic view of the scene showing its dimensions and size in a manner not available through the still photographs. In State v. McCaslin, 291 Kan. 697, 724-26, 245 P.3d 1030 (2011), the court rejected a similar argument that an eight-minute fire department video was irrelevant, cumulative, and more prejudicial than probative. The court held it was relevant because it VOL. 311 SUPREME COURT OF KANSAS 481

State v. Randle helped the jury understand the facts and allowed it to see the fire dam- age and disarray inside the house, even though photographic evidence was introduced as well. The court noted the victim's burnt body was briefly visible, but not unduly prejudicial. It also stated that although some of the same information was introduced through other evidence, the video had other relevant information. 291 Kan. at 726; see also State v. Parker, 277 Kan. 838, 848, 89 P.3d 622 (2004) (district court properly admitted videotape of crime scene in murder prosecution as it was useful for acquainting the jurors with the crime scene); State v. Groschang, 272 Kan. 652, 667-68, 36 P.3d 231 (2001) (district court did not err when admitting the video evidence showing "the victim's head, blood splatters, and brain matter"). We hold the district court did not err by admitting the video.

Photographs taken of Randle while in custody

Two photographs were introduced showing Randle standing and facing the camera with his back to a wall. Both were taken while he was in custody, but he was in street clothes and without handcuffs or other restraints. The first, Exhibit 66, shows Randle's full body length. The second, Exhibit 67, shows him from his head to waist. Counsel objected to Exhibit 67, arguing it was duplicitous and had no independent value. The district court admitted both photos. These photos are virtually identical, but Exhibit 67 gave the jury a closer view of Randle's face and upper body. The State argues these images "played an important role in this case" because it also produced the surveillance video, implying the jury could compare his appearance at the time of the crime with the men shown in the surveillance video. Randle does not challenge the exhibits' relevancy, so the issue is limited to prejudice. We hold this evidence was not unduly prejudicial, since both photographs depicted Randle's features differently and, therefore, were not duplicitous and had an independent value. See State v. Tague, 296 Kan. 993, 1002, 298 P.3d 273 (2013).

RANDLE'S MOTION FOR A DEPARTURE SENTENCE

Before sentencing, Randle requested an unspecified "dispositional/durational departure" sentence, advancing four mitigating factors: (1) his family support; (2) the existence of community- 482 SUPREME COURT OF KANSAS VOL. 311

State v. Randle based programs that would aid his rehabilitation; (3) his intoxication at the time of the crime; and (4) his lesser role in the crime. The district court denied the motion by finding there were "no substantial and compelling bases." See K.S.A. 2019 Supp. 21- 6620 (providing hard 25 life sentence may be imposed for premeditated murder in lieu of standard hard 50 sentence if sentencing judge finds substantial and compelling reasons to impose the lesser sentence); K.S.A. 2019 Supp. 21-6815(a) (providing sentencing judge to impose presumptive sentence for grid crimes unless judge finds substantial and compelling reasons to impose departure sentence). On appeal, Randle claims the court erred because the mitigating factors listed in his motion "have previously been held to be substantial and compelling reasons to support a departure sentence, the district court acted arbitrarily in refusing to grant a departure sentence in the instant case." But this court has long recognized "that mitigating factors which may in one case justify departure may not in all cases justify a departure." State v. Hines, 296 Kan. 608, 620, 294 P.3d 270 (2013). Randle fails to show an abuse of discretion, i.e., that no reasonable person would agree with the district court's assessment of whether the mitigating circumstances were substantial and compelling. We hold the court did not err in denying the departure motion.

Affirmed.

1 PATRICK D. MCANANY, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 119,720 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.