Volume 311, No. 1 Opinions Filed in January-March 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. 1 Opinions filed in January-March 2020

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Sara R. Stratton, Official Reporter

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 1 HON. EVELYN Z. WILSON ...... Smith Center VACANT ......

1 Sworn in January 24, 2020.

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

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IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

2020-RL-0014

RULES RELATING TO DISTRICT COURTS

Supreme Court Rule 119 is hereby amended, effective the date of this order.

Rule 119

FAX FILING AND SERVICE BY FAX

(a) Applicability. This rule applies to all district court proceedings except a small claim as defined in K.S.A. 61-2703. (b) Limitation on Use of Fax Filing. A Kansas-licensed attorney is subject to the provisions of Rule 122 when filing any document with a district court. (c) Definitions. The following definitions apply in this rule, unless the context requires otherwise. (1) “Document” includes a pleading, motion, or other paper and attached exhibits. “Document” does not include a pleading, motion, other paper, or exhibit if a statute requires the original to be filed with the court. (2) “Fax filing” or “filing by fax” means transmitting a facsimile of an original document by electronic means to a court or fax filing agency for filing with the court. The term includes receipt of the transmission by the court or agency. (3) “Fax filing agency” means an entity that receives documents by fax for processing and filing with the court. (4) “Transmission record” means a document printed by a sending fax machine stating the telephone number of the receiving machine, the number of pages sent, and the transmission time, indicating no errors in transmission. (d) Filing by Fax. An unrepresented party may file a document by fax directly with a district court at the fax number designated by the clerk. The following rules apply. (1) Separate Transmission for Each Court Filing. Each document filed by fax must be transmitted separately. The document may include attached exhibits. (2) 10-Page Limit. The document, with attached exhibits, must not exceed 10 pages and must not be split into multiple trans- missions to avoid the page limit. The transmission sheet required by paragraph (4), cover sheet required by Rule 123, and

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any special processing instructions are not included in the 10- page limit. (3) Summonses and Service Copies. If the fax filing does not exceed the page limit in paragraph (2), a petition may include related summonses and service copies. If their inclusion would cause the transmission to exceed 10 pages, all additional copies and summonses must be delivered to the clerk in a manner other than by fax transmission and must be accompanied by a request for service. (24) Transmission Sheet Required. A fax filing must be accompanied by a Fax Transmission Sheet on the judicial council form. The transmission sheet must be the first page(s) transmitted, followed by any special processing instructions. When the second page of the transmission sheet contains credit or debit card information, that page must not be retained in the case file or pub- licly disclosed. (35) Other Fax Content Requirements. The following additional requirements apply to the content of a document filed by fax:

(A) the first page must include the words “By Fax”; and (B) each page must be numbered and must include a short caption of the case and an abbreviated title of the document. (46) Retention of Fax Transmission Record and Original Docu- ment. (A) Transmission Record. An unrepresented party filing by fax must retain a transmission record. (B) Original Document. An unrepresented party that files or serves a document by fax must retain the original document during the pendency of the action and must produce it on request by the court or a party. If the unrepresented party fails to produce the document, the court may strike the fax filing and impose sanctions under K.S.A. 60-211. (57) When a Fax Filing is Deemed Filed. Subject to the provisions of paragraph (79)(C), a fax filing received by a court is deemed filed at the time printed by the court fax machine on the final page of the fax document received or at the time recorded on the court’s electronic fax log.

(68) Motion Procedure When Fax Filing Fails.

(V)

(A) Applicability. A court, on motion of the sender, may order filing of a document nunc pro tunc if a fax filing is not filed with the court because of: (i) an error—the occurrence of which was un- known to the sender—in the transmission of the document; or (ii) the court’s failure to process the fax filing on receipt. (B) Motion Requirement. A motion under subpara- graph (A) must be accompanied by:

(i) the transmission record;

(ii) a copy of the document transmitted; and (iii) a Declaration of Transmission by Fax on the judicial council form. (79) Payment of Fees. The following rules govern the payment of fees associated with a document filed by fax. (A) Only a credit or debit card system designated by the judicial administrator may be used to pay a docket fee, filing fee, and any other fee or charge. (B) When payment of a fee is required with a fax filing, the second page of the transmission sheet must include: (i) the name of the credit or debit card system and the account number to which the fee is to be charged; (ii) the signature of the cardholder authorizing the charge; and

(iii) the credit or debit card’s expiration date. (C) If a charge for a fee is rejected by the credit or debit card issuing company, the document is not deemed filed under K.S.A. 60-203 or 60-2001. (810) Rules Applicable to a Court. The following rules apply to a district court. (A) A court must have its fax machine available on a 24-hour basis. (B) A court may impose limits, by order or local rule, on the number of fax filings by an unrepresented party.

(e) Service by Fax.

(VI)

(1) How Made. Service by fax is made by transmitting a document to the attorney’s or unrepresented party’s designated fax number. (2) Fax Service by Court. A court may serve a notice by fax if the notice may be served by mail. (3) Must Make Fax Machine Available. An attorney or unrepresented party that has listed a fax number on a paper in compliance with Rule 111 must make the fax machine available for receipt of documents on a 24-hour basis. (4) When Fax Service Deemed Complete. Service by fax is complete when the transmitting machine generates a transmission record indicating successful transmission of the entire document. (5) Certificate of Service by Fax. A certificate of service by fax must include:

(A) the transmission date and time;

(B) the name and fax number of the person served; (C) a statement that the document was transmitted by fax and the transmission was reported as complete and without error; and (D) the signature of the attorney or person making the transmission. (f) Fax Signature. A fax signature has the same effect as an original signature.

(g) Fax Filing Agency. (1) An unrepresented party may transmit a document, without a page limit, by fax to a fax filing agency for filing with a court. The fax filing agency acts as the filing party’s agent, not as the court’s agent. (2) A fax filing agency is not required to accept a document for filing unless the sender has made appropriate arrangements for payment of any docket or other required fee before the document is transmitted to the agency.

Dated this 16th day of March 2020.

FOR THE COURT:

MARLA LUCKERT Chief Justice

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Kansas Supreme Court Table of Cases 311 Kan. No. 1

In re Kupka ...... 193 In re Saville ...... 221 State v. Becker ...... 176 State v. Boeschling ...... 124 State v. Carter ...... 206 State v. Downing ...... 100 State v. Fowler ...... 136 State v. Gray ...... 164 State v. Jenkins ...... 39 State v. Lyman ...... 1 State v. Newman ...... 155 State v. Patterson ...... 59 State v. Peterson ...... 162 State v. Smith ...... 109 State v. Williams ...... 88 Williams v. Geico General Ins. Co...... 78

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PETITIONS FOR REVIEW OF DECISIONS OF THE COURT OF APPEALS 311 Kan. No. 1

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Allen v. State ...... 118,929 Denied ...... 12/31/2019 Unpublished Avila v. State ...... 119,800 Denied ...... 02/27/2020 Unpublished Bell v. State ...... 118,812 Denied ...... 12/31/2019 Unpublished Bone v. State ...... 119,371 Denied ...... 12/31/2019 Unpublished Deshazer v. State ...... 119,055 Denied ...... 12/31/2019 Unpublished Ellie v. State ...... 120,030 Granted ...... 02/25/2020 Unpublished Foxfield Villa Assocs. v. 57 Kan. App. 2d Robben ...... 119,611 Denied ...... 02/27/2020 122 Guilbeaux v. Schnurr ...... 120,458 Denied ...... 02/27/2020 Unpublished In re Adoption of Baby Girl G...... 121,051 Granted ...... 02/25/2020 Unpublished In re Adoption of E.D...... 120,797 Denied ...... 02/27/2020 57 Kan. App. 2d 500 In re Care & Treatment of 57 Kan. App. 2d Quillen ...... 120,184 Granted ...... 02/25/2020 407 In re D.H...... 121,131 Denied ...... 02/27/2020 57 Kan. App. 2d 421 In re I.A...... 118,802 Granted ...... 02/25/2020 57 Kan. App. 2d 145 In re Marriage of Patel & Yendru ...... 119,064 Denied ...... 02/27/2020 Unpublished In re P.R...... 119,745 Granted ...... 02/25/2020 Unpublished Johnson v. Cline ...... 119,224 Denied ...... 12/31/2019 Unpublished Johnson v. Stormont Vail Healthcare ...... 120,056 Denied ...... 02/25/2020 57 Kan. App. 2d 44 JP Morgan Chase Bank v. Taylor ...... 119,969 Denied ...... 02/27/2020 Unpublished Kollhoff v. Kansas Board of Pharmacy ...... 118,130 Denied ...... 01/09/2020 Unpublished Lenard v. Farm Bureau Property & Cas. Ins. Co...... 120,628 Denied ...... 02/27/2020 Unpublished Livingston v. State ...... 119,555 Denied ...... 12/31/2019 Unpublished Loyo v. State ...... 119,016 Denied ...... 12/31/2019 Unpublished Milton v. State ...... 119,821 Denied ...... 12/31/2019 Unpublished Noll v. Higgins ...... 118,657 Denied ...... 02/27/2020 Unpublished Reverse Mortgage Solutions, Inc. v. Goldwyn ...... 118,370 Denied ...... 02/28/2020 56 Kan. App. 2d 129 Sedgwick County v. Shelite ... 117,715 Denied ...... 01/09/2020 Unpublished State v. Alexander ...... 118,270 Unpublished 118,271 Denied ...... 12/31/2019 Unpublished State v. Arrizabalaga ...... 120,209 Granted ...... 02/25/2020 57 Kan. App. 2d 79 State v. Bagby...... 119,382 Denied ...... 02/27/2020 Unpublished State v. Bemis ...... 118,357 118,358 Denied ...... 02/27/2020 Unpublished

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Bishop ...... 118,896 Denied ...... 02/27/2020 Unpublished State v. Bost ...... 120,493 Denied ...... 12/31/2019 Unpublished State v. Briones ...... 119,760 Denied ...... 02/27/2020 Unpublished State v. Bunyard ...... 115,603 Denied ...... 01/09/2020 Unpublished State v. Carter ...... 116,588 Denied ...... 01/14/2020 Unpublished State v. Charles ...... 119,346 Denied ...... 02/25/2020 Unpublished State v. Coble ...... 118,382 Granted ...... 02/25/2020 Unpublished State v. Coppage ...... 115,585 116,874 Denied ...... 12/31/2019 Unpublished State v. Darnell ...... 119,922 Denied ...... 12/31/2019 Unpublished State v. Delira ...... 119,005 Denied ...... 02/27/2020 Unpublished State v. Dickey...... 120,277 Denied ...... 12/31/2019 Unpublished State v. Dipman ...... 118,493 Denied ...... 12/31/2019 Unpublished State v. Doyle ...... 119,174 Denied ...... 02/27/2020 Unpublished State v. Dryden ...... 119,976 Denied ...... 02/27/2020 Unpublished State v. Dunn ...... 119,866 Granted ...... 02/25/2020 Unpublished State v. Edmonds ...... 118,759 Denied ...... 02/27/2020 Unpublished State v. Ellis ...... 120,046 Granted ...... 02/25/2020 57 Kan. App. 2d 477 State v. Evans ...... 120,168 Denied ...... 12/31/2019 Unpublished State v. Filbert ……………... 117,326 Denied ……………… 01/09/2020 Unpublished State v. Flenniken ...... 119,343 Denied ...... 12/31/2019 Unpublished State v. Fletcher ...... 118,852 Denied ...... 02/27/2020 Unpublished State v. Ford ...... 119,328 Denied ...... 02/27/2020 Unpublished State v. Ford ...... 119,392 Denied ...... 12/31/2019 Unpublished State v. Franklin ...... 120,003 Denied ...... 12/31/2019 Unpublished State v. Gonzalez ...... 119,311 Denied ...... 02/27/2020 56 Kan. App. 2d 1225 State v. Goodridge ...... 119,466 Denied ...... 12/31/2019 Unpublished State v. Johnson ...... 118,380 Denied ...... 02/27/2020 56 Kan. App. 2d 1293 State v. Landeo ...... 118,156 Denied ...... 02/28/2020 Unpublished State v. Larkin ...... 115,985 Denied ...... 02/05/2020 Unpublished State v. Lindsay ...... 117,826 Denied ...... 02/27/2020 Unpublished State v. Lomax ...... 119,080 Denied ...... 12/31/2019 Unpublished State v. Manning ...... 120,087 Denied ...... 12/31/2019 Unpublished State v. Martinez ...... 119,910 Denied ...... 02/27/2020 Unpublished State v. McCaughtry ...... 117,182 Denied ...... 01/09/2020 Unpublished State v. McCown ...... 120,130 Denied ...... 02/27/2020 Unpublished State v. Moreno ...... 118,409 Denied ...... 02/27/2020 Unpublished State v. Nelson ...... 119,491 Denied ...... 12/31/2019 Unpublished State v. Ortega-Cadelan ...... 119,987 Denied ...... 02/27/2020 Unpublished State v. Otano ...... 119,294 Denied ...... 12/31/2019 Unpublished State v. Perez ...... 119,336 Denied ...... 02/27/2020 Unpublished State v. Perez-Mares ...... 119,632 Denied ...... 02/27/2020 Unpublished State v. Peters ...... 120,063 Denied ...... 12/31/2019 Unpublished State v. Pjesky ...... 119,256 Denied ...... 12/31/2019 Unpublished State v. Robbins ...... 115,890 Denied ...... 02/25/2020 Unpublished

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Schmidt ...... 119,354 Granted ...... 02/25/2020 Unpublished State v. Scott ...... 118,979 Denied ...... 02/27/2020 Unpublished State v. Sheppard ...... 119,454 Denied ...... 12/31/2019 56 Kan. App. 2d 1193 State v. Smith ...... 119,356 Denied ...... 02/27/2020 56 Kan. App. 2d 1205 State v. Smith-Parker……….. 114,713 114,714 Denied………………. 01/09/2020 Unpublished State v. Stapleton ...... 118,796 Denied ...... 12/31/2019 Unpublished State v. Stevenson ...... 120,051 Denied ...... 12/31/2019 Unpublished State v. Timmons ...... 119,830 Denied ...... 12/31/2019 Unpublished State v. Travis ...... 120,559 Denied ...... 02/03/2020 Unpublished State v. Tyler ...... 119,559 Denied ...... 12/31/2019 Unpublished State v. Walker ...... 119,666 Denied ...... 12/31/2019 Unpublished State v. Williams ...... 118,013 Denied ...... 02/27/2020 Unpublished State v. Williams ...... 119,450 Denied ...... 12/31/2019 Unpublished Vaughn v. United Svcs. Automobile Ass'n ...... 118,974 Denied ...... 02/27/2020 Unpublished Weeks v. State ...... 119,733 Denied ...... 12/31/2019 Unpublished Wells Fargo Vender Financial Svcs. v. 56 Kan. App. 2d Nationwide Learning……… 118,334 Denied 01/22/2020 259

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SUBJECT INDEX 311 Kan. No. 1

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

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

ATTORNEY AND CLIENT:

Disciplinary Proceeding—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

— Two-year Suspension. 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). Re- spondent must undergo a Rule 219 hearing if requests reinstatement. In re Saville …………………………………………….………..……. 221

COURTS:

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

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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

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

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

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

XIV SUBJECT INDEX 311 KAN.

PAGE

substance that, from the manner in which it is used or is intended to be used, 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

— 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

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

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 9 of Kansas Consti- tution Bill of Rights. The test for a disproportionality challenge based on § 9 of the Kansas Constitution Bill of Rights includes both legal and factual

311 KAN. SUBJECT INDEX XV

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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 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

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

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

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 authenticating an audio recording outlined in State v. Williams, 235 Kan. 485, 681

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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 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

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

INSURANCE:

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

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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

Recusal of Trial Judge Requested under K.S.A. 20-311d(b)—Requirement 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 affirmation. State v. Lyman ………………………………………..……...……. . . . 1

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

TRIAL:

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

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

XVIII SUBJECT INDEX 311 KAN.

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

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

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

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

— 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 Ev- idence 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

311 KAN. SUBJECT INDEX XIX

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

VOL. 311 SUPREME COURT OF KANSAS 1

State v. Lyman

No. 114,312

STATE OF KANSAS, Appellee, v. CHRISTOPHER LYMAN, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Motion for New Trial Based on Newly Discovered Evidence—Re- quirements. 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.

2. CRIMINAL LAW—Exculpatory Evidence—Prosecutor's Duty to Disclose Evidence Favorable 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.

3. TRIAL—Expert Testimony—District Court's Obligation to Ensure Relia- bility—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 469 (1993). The reliability inquiry must be tied to the particular facts and circumstances of the particular case.

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

5. EVIDENCE—Other Crimes Evidence under K.S.A. 2018 Supp. 60-455—Pro- bative 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

2 SUPREME COURT OF KANSAS VOL. 311

State v. Lyman

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.

6. JUDGES—Recusal of Trial Judge Requested under K.S.A. 20-311d(b)—Re- quirement 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 affirmation.

7. SAME—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.

8. TRIAL—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.

9. TRIAL—Cumulative Error Doctrine—Single Error Cannot Constitute Cu- mulative Error. In the absence of any trial error, none can accumulate; and the presence of one error is insufficient to accumulate.

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed January 10, 2020. Affirmed.

Richard Ney, of Ney and Adams, of Wichita, argued the cause, and Roger L. Falk, of Joseph, Hollander & Craft, L.L.C., of Wichita, was on the briefs for appellant.

Jason B. Oxford, assistant county attorney, argued the cause, and Thomas A. Hostetler, assistant county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

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State v. Lyman

NUSS, C.J.: Christopher Lyman asks this court to reverse his convictions for felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. The victim was Lyman's eight-month-old nephew J.S. who was temporarily living with Lyman, his wife Tammarisk, and their son, E.L. After Lyman filed his direct appeal, the prosecutor asserted that he thought he saw a family matching the general appearance of Lyman, Tammarisk, E.L., and J.S. in a store two days before J.S.'s death. The woman acted aggressively toward the older child and the other child did not look well. After this court remanded for a hearing on this newly discovered evidence, the district court ultimately concluded it was not corroborated and too speculative to warrant a new trial.

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the district court err by denying Lyman's motion for new trial? No.

2. Did the district court abuse its discretion in excluding Lyman's proposed expert witness for failure to satisfy the test under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)? No.

3. Did the district court err by allowing the State to introduce evidence of Lyman's prior bad acts? No.

4. Did the district court judge commit judicial misconduct by sleeping during the trial? No.

5. Did the district court err by prohibiting Lyman from in- troducing medical records that were subject to a written stipulation? No.

6. Did cumulative errors require reversal and remand for a new trial? No.

As a result, we affirm Lyman's convictions.

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State v. Lyman

FACTS AND PROCEDURAL BACKGROUND

Evidence at Trial

The district court held a two-week jury trial beginning in May 2015. What follows is a summary of the evidence most relevant to this appeal. Police Officer David Sloan testified he responded to a call from Geary County Hospital (GCH) for suspicion of child abuse on September 15, 2013. There he met with the emergency room's Dr. Graham Keats and pediatrician Dr. Adikuor Adjetey. They told him J.S. was dying and had bruising on his face, subarachnoid bruises, and asymmetric pupils. Sloan briefly observed J.S. while being prepared for transport to Children's Mercy Hospital in Kan- sas City. Sloan then met with Lyman and his one-and-a-half-year-old son E.L. in the lobby. Lyman told him the family had been caring for J.S. since August 28—about two weeks prior—while J.S.'s mother put her life back together. Sloan asked Lyman what had happened to J.S. that night. Lyman replied that E.L., who slept in his own room, woke up Lyman. He checked on E.L. and then on J.S. in another room. J.S. was "lifeless, cold, unresponsive, although the child still was breathing, still had a pulse." Lyman woke up his wife and the four of them came to the emergency room. Lyman thought the bruises might have happened when J.S. was playing with E.L. because sometimes the boys collided. Also, about two weeks earlier, Lyman had been carrying J.S. when he fell down some stairs. But Lyman said he took the brunt of the fall with his own back and did not think that J.S. was injured. Dr. Keats testified he was working the night shift and was the first doctor to see J.S. The child was pale, unresponsive, having difficulty breathing, and did not respond to stimuli. When Dr. Keats shone a light in J.S.'s eyes, his right pupil reacted but the left did not, indicating a brain injury or problem with oxygen to the brain. Dr. Keats started an IV, further examined J.S., and ordered lab work and a CT scan. Dr. Keats also observed bruising on J.S.'s right cheek. He initially considered SIDS and child abuse as possible causes of J.S.'s

VOL. 311 SUPREME COURT OF KANSAS 5

State v. Lyman condition. SIDS, however, would not cause a subarachnoid hem- orrhage, so he had to consider whether there was a history of injury to cause the brain bleed. He explained the arachnoid mem- brane is the layer of tissue next to the brain, and subarachnoid means the bleeding is next to the brain itself. The CT showed a questionable trace of subarachnoid blood in the right temporal re- gion, which led him to suspect some injury to J.S.'s head. That type of injury led Dr. Keats, in consultation with Dr. Adjetey, to consider child abuse as a cause of J.S.'s injury and to contact the Geary County police. Dr. Keats also spoke to Lyman outside J.S.'s room. Dr. Keats asked what had happened at home that led Lyman to bring the child in, how had he found the child, and whether there was any history of previous illnesses with J.S. Lyman told him he had got- ten up for another reason, gone in to check on J.S., found him unresponsive and brought him to the emergency room. He did not know of any falls within the last few days. Dr. Keats found Lyman pleasant and easy to talk to but unemotional and not worried about J.S. Lyman also told Dr. Keats that J.S. had a history of respiratory syncytial virus (RSV), a breathing disorder. But Keats did not observe any residual issues from the RSV in J.S.'s chest. Using a laryngoscope that goes over the tongue, Dr. Keats had tried to place a plastic tube in J.S.'s airway to assist his breathing, a process known as intubation. The procedure was difficult, however, because of some swelling in J.S.'s pharynx and around the area above his airway. He and Dr. Adjetey both attempted to intubate J.S. before calling in a Certified Registered Nurse Anesthetist (CRNA) who successfully completed the procedure. Dr. Keats explained the intubations occurred very quickly one right after the other, and upon examining the inside of J.S.'s mouth, he did not think it was damaged by them. Because CRNAs routinely do intubations for their work, to his knowledge the procedure would not have injured J.S.'s gums or frenulum—an area between the lip and upper teeth. J.S.'s temperature was taken rectally, but this procedure would not be expected to cause injury to his anus. J.S.'s rectal temperature was 91.8 de- grees, much lower than the typical 98.6.

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State v. Lyman

Dr. Keats testified that when J.S. came to GCH, he was criti- cally ill, i.e., there was a good chance he could die. J.S.'s condition was the same when he was transported to Children's Mercy. Dr. Adjetey testified she was on call for GCH that morning. She arrived at the hospital by 3:30 a.m. and found Dr. Keats in the resuscitation room attempting to intubate J.S. Dr. Adjetey then tried once before the CRNA succeeded. She observed that J.S. was unresponsive with a bruise on his forehead and on his right cheek. His left eye was asymmetrical, meaning the pupil was dilated and would not respond to light. Dr. Adjetey ordered a CT scan. From it the radiologist determined there was a diffuse injury to J.S.'s brain and blood on its right side. Dr. Adjetey recommended J.S. be transferred to Chil- dren's Mercy to their pediatric intensive care unit. She was concerned that J.S. had a brain bleed, was only eight months old, and for a child of that age to sustain such an injury there must have been some kind of tremendous force to the head. She further testified that because an eight-month-old child is usually not walking, most injuries would be low impact. Dr. Adjetey conferred with Dr. Keats, and they contacted law enforcement to report possible abuse. Dr. Adjetey also took a medical history from Lyman. He told her that J.S. had not been acting like himself the last few days but that day he was eating well and acting normally. He put J.S. to bed at about 7 p.m. and checked on him at 10 p.m. At 2:30 a.m., E.L. woke up Lyman. After checking on E.L., Lyman checked on J.S. and found him unresponsive and limp in his bed. Children's Mercy child abuse pediatrician Dr. Terra Frazier testified she examined J.S. in the pediatric intensive care unit. Nu- merous tests were done, including CT scans of J.S.'s head, blood tests, tests to detect infection, and an EKG. The CT scan showed subdural blood (outside of the brain but inside of the skull), on the right side and in the interhemispheric area (the space between the two halves of the brain). J.S. also had "mass effect," i.e., the blood was squishing his brain, and he had loss of gray/white matter or diffuse cerebral edema. She further testified these types of injuries

VOL. 311 SUPREME COURT OF KANSAS 7

State v. Lyman require a significant amount of force. An eight-month-old's normal daily activities and care should not cause injuries of this magnitude. Dr. Frazier took photographs of bruises on J.S.'s right eye, inside of his left ear, right ear, hip and groin area, chest, left side of the top of his head, right back side of his head, front of his head, and left buttocks. J.S. also had red scabbing on the back of his head. J.S. had a rectal thermometer—a very small, thin, flexible tube of soft rubber—inserted to keep track of his body temperature. It is inserted with a lubricant and not expected to cause damage. In one photograph, Dr. Frazier had moved the thermometer aside to show perianal lacerations—tears around the skin of the anus—and bruising on the right buttock. Dr. Frazier testified the lacerations would not be consistent with stooling, defecating, or wiping for cleansing because of their location and nature. She diagnosed the lacerations as blunt, external force penetrating trauma. Dr. Frazier testified she took a photograph of J.S.'s mouth showing injury to the lower lip and gums. According to her, the injury was not consistent with intubation because of its location near the lower lip, which would not be contacted by the instrument during the procedure. While there was also injury to the frenulum it also would not be associated with intubation. She further testified that children who are mobile could be expected to have bruising on the forehead, forearms, and shins—i.e., areas that are particularly affected when children fall. But injuries to the ears, chest, and mouth would not be expected in such children and even less so in those with limited mobility. According to the doctor, these types of injuries could not be explained by RSV, rubella, or diabetes. Dr. Frazier further explained it is possible to have a brain injury without external marking when the brain is moving about or experiencing different forces within the skull, such as accelera- tion/deceleration type injuries. A force above and beyond routine care and handling would cause such an injury, such as severe motor vehicle collisions—or child abuse (including shaking, impact,

8 SUPREME COURT OF KANSAS VOL. 311

State v. Lyman and penetrating wounds). She testified that when the brain swells and herniates, it affects the ability to regulate breathing. Dr. Frazier also testified J.S. had multilayered retinal hemorrhages that were too many to count. They extended out to the pe- riphery—which is associated with abusive head trauma and consistent with shaking. As a result of examining J.S., his medical history, laboratory studies, radiologic studies, and the rest of the information available to her at the time, and based on her expertise and training, Dr. Frazier diagnosed J.S. with physical abuse and abusive head trauma. Given his level of brain injury, she expected that he would have reacted in a different manner immediately after its cause. According to her, any caregiver should have been able to look at him and tell something was wrong. Lisa Lowe, pediatric radiologist at Children's Mercy, testified she looked at the CT images without any patient history information. She found acute subdural hematoma on the right side of the brain, i.e., blood surrounding it. While there was not much hemorrhaging, the entire brain was swollen. Because this could be a risk for sudden death, she contacted the intensive care unit to alert them and advise that the bleeding associated with the diffuse brain swelling was most likely caused by child abuse or nonacci- dental trauma. Dr. Lowe never saw J.S. or any other medical history. But the type of injury alone caused her concern. According to the doctor, the very generous window for the injury to have occurred was six hours to seven days. But she testified a child with that type of injury would be unresponsive, limp, and unable to do anything other than breathe and have a pulse. In sum, there was no way a child with these injuries could be walking around his home looking normal and doing normal child activities. Forensic pathologist Erik Mitchell testified he performed an autopsy on J.S. on September 19. He too testified the lip injury was not from intubation. He further testified to finding, among other things, a bruise on J.S.'s right upper eyelid and bruises at the cheek level; a discoloration on the forehead between the eyebrow and the hairline; a healing injury on the back of the skull; bruises on the scalp; and a subdural hematoma which he opined indicated a head trauma.

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State v. Lyman

He concluded these findings showed a pattern of injury going from front to back. Moreover, there was nothing "that would be inconsistent with multiple applications of the force of a hand." Dr. Mitchell noted the presence of the "classic triad" associated with shaking death: retinal hemorrhages, hemorrhages about the optic nerve sheaths, and subdural hematoma. He concluded J.S.'s death was not caused by a blood disorder, RSV, or accident but by injuries. In addition to the evidence from the State's medical witnesses, Sergeant Detective Cory Odell testified. He spoke to Dr. Keats who reported Lyman seemed disinterested in what was going on the night he brought in J.S. And Lyman left the hospital soon after bringing in J.S. William Arnold Jr., police detective and certified forensic computer examiner who specializes in cybercrime, testified about photos on Lyman's phone and computer searches Lyman completed in the weeks before J.S.'s death. Arnold testified a photo of J.S. on Lyman's phone was taken on July 25, at 11:11 a.m.—about seven weeks before the boy's death. And one more selfie photo of Lyman with J.S. was taken less than 60 seconds later. In two other photographs taken within the same 60-second timeframe, Lyman is pressing down on J.S.'s eyelids. About 30 minutes later another photograph was taken of J.S. with a pacifier saying "bad seed." Arnold testified this later photograph contained marks near J.S.'s right eye and on his forehead that appeared to be bruising. Additionally, photographs on Lyman's phone taken on Sep- tember 2 (about two weeks before J.S.'s death) showed bruising on J.S.'s forehead and near his eye as well as a hand covering his face. Arnold pointed out a photo of J.S. appearing alert and normal on Saturday, September 14 at 4:02 p.m.—but he was then taken to the hospital that night and eventually died. Arnold also testified he found a message on Tammarisk's phone from J.S.'s mother, M.S., on July 25 at 3:51 p.m. He also found a text message to "Ice Mom," later identified as Tam- marisk's and M.S.'s mother—T.S.—17 minutes later. Later testimony revealed that M.S. frequently used her mother's phone, and

10 SUPREME COURT OF KANSAS VOL. 311

State v. Lyman therefore the message was probably from Tammarisk for M.S. It stated:

"Can't talk right now. I have asked everyone. No he wasn't dropped. He has been sick since he was fed peach[es] and cereal. That's why he had a bath. Also he had been really tired lately. Calia, grandma, Chris and Jean can attest to that. But it will be best if he is watched by other people. Since I feel you think he is abused over here. That is the last thing that happens. Yes bruises around his waist are from Chris [Lyman] having no real feeling in his fingers. Sorry that you feel he isn't cared for here. The worst thing that might happen is [E.L. tries] to play a little [rough]. But he is told no right away." (Emphasis added.)

Also entered into evidence was a text exchange Arnold found between Tammarisk and Lyman. Tammarisk texted, "[E.L.] was crabby for a few hours. Now he is just being a little bratty. [J.S.] is starting to stir, so I am going to go up and get him in a bit." On September 12—three days before J.S.'s final trip to the hospital— Lyman responded, "Leave [J.S.] to his own demise." Finally, Arnold testified he found a search on Lyman's phone dated August 25—three weeks before J.S.'s death—for "effects of shaken baby syndrome." Richard Marchewka, forensic scientist from the Kansas Bureau of Investigation, also testified. On August 31 (two weeks before J.S.'s death) Lyman's computer history showed that the user, presumably Lyman, had visited a Children's National Health System webpage on concussion as well as frequently asked questions discussing brain trauma and concussion. According to Marchewka, two minutes later the computer showed a visit to a Mayo Clinic webpage discussing concussion and symptoms of concussion. The next day the user accessed a website on abusive head trauma, shaken baby syndrome, and an explanation of injuries to the head from that syndrome. Kacy Drake testified she babysat both J.S. and E.L. on Friday, September 13, the night before J.S. was taken to GCH. The Lymans dropped the boys off at her apartment around 5:30 p.m. Her children were also there. J.S. was fussy that evening, cutting a few top teeth. According to Drake, she therefore held J.S. almost the whole time. The Lymans picked the boys up by 8 p.m. She did not notice J.S. fall, get hit, or bump anything. He had no conflict with her children, and she herself did not hit or harm him. She did not notice anything unusual about him that evening.

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State v. Lyman

J.S.'s mother, M.S., testified she and J.S. lived with her grandmother in Ohio. When J.S. was four months old, she started working in Chardon, Ohio. M.S. arranged for her sister Tammarisk, and brother-in-law Lyman, who at the time lived 20 minutes outside Chardon, to watch J.S. while she worked. Six days a week she would get J.S. ready, put him in the car seat, drive to the Lymans' house, drop him off, work, and then pick him up around 5 or 6 p.m. On July 25, M.S. "very angrily" contacted Tammarisk after she noticed small bruising around J.S.'s waist, a bruise on his head, and unusual behavior. They talked by phone, and she could hear Lyman in the background, explaining that he might have tripped over J.S. in the car seat in the dark. According to M.S., she would leave J.S. in the car seat inside the Lyman front door while the family was sleeping and someone would come and get J.S. The Lymans stopped watching J.S. as they packed for their move to Kansas in August. When M.S. got into legal trouble for driving under the influence and could not afford the court pay- ments, Tammarisk agreed to take J.S. for a couple of weeks so M.S. could catch up financially. M.S. did not talk to Lyman about this arrangement. After two weeks, M.S. still did not have the money to retrieve J.S. M.S. testified J.S. had a long history of visits to the doctor, beginning even before he was born. She was in a major car accident when she was six-and-a-half months pregnant. She had to take antibiotics for an infection before she could go into labor. M.S. also indicated J.S. had problems with his heart. When J.S. was born, he was gray and the umbilical cord was around his neck. He defecated during the birth, threatening an infection. He was placed in an incubator the first night and M.S. was sent home three days after the birth. She also testified J.S. had genetic rubella. When J.S. was a month-and-a-half old, he stopped breathing. M.S. rushed him to the emergency room across the street, and they resuscitated him. J.S. had whooping cough. J.S. also stopped breathing when he was three months old. M.S. again rushed him to the emergency room and they both rode in an ambulance to the children's hospital. He was there for a week—part of the time on full

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State v. Lyman life support. He was diagnosed with RSV and sent home with a breathing machine. Regarding J.S.'s relationship with the Lymans, M.S. testified that J.S. was very close to them. She herself is close with her sister Tammarisk, and they talk every day. M.S. testified "Dad" was the only word J.S. ever knew and he used it to refer to Lyman. Ac- cording to M.S., J.S. would chew on his bottom lip as he was teething to the point of bleeding. According to the police, they found two sex toys in a drawer in the Lyman master bedroom's vanity, one of which was silicone and the other glass. They obtained DNA swabs from Lyman to compare to DNA found on the sex toys. On the silicone toy, both the plastic handle end and the silicone one had a DNA profile consistent with his known DNA profile. For the silicone end, the DNA profiles of at least three people were in the mixture. Additional testing using the Y-chromosome identified that genetic material as consistent with the known male DNA haplotype of J.S. The probability of selecting an unrelated male at random from the general population with that partial male DNA haplotype is approximately one in every 8,621 individuals. The glass sex toy contained a profile consistent with Lyman's of one in 57 trillion. Its other end had a male DNA haplotype consistent with a mixture from at least two individuals that could be sep- arated into a major and minor haplotype. The major was consistent with Lyman, so he and all his male paternal relatives could not be excluded as possible contributors. The minor profile was consistent with J.S., so he and all of his male paternal relatives could not be excluded as possible contributors. Lyman did not testify. But the State played for the jury the video tape of his police interview from Sunday, September 15. At one point when he was alone in the interview room he got up and said, "My life is over." For the defense, Dean Stetler, associate professor in molecular biosciences at the University of Kansas, testified there could have been cross contamination in performing the DNA analysis on the sex toys because the playpen crib pad was processed alongside them. He also said there could have been cross-contamination of

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DNA on those toys while they were in the drawer, but he did not see any toys or children's items in the picture of the drawer contents. Jessica Lyman, Lyman's sister, testified she has a son the same age as J.S. The Lymans sometimes babysat her son but he never came home with any bruises. She testified Lyman was a loving father to J.S. And she described J.S. as a child with gray coloring who was fussy, vomited frequently, and breathed differently. T.S. (J.S.'s grandmother) testified she had observed the bruises on J.S.'s waist from July which Tammarisk had explained were caused by Lyman gripping J.S. too tightly because Lyman does not have feeling in his fingers. She also testified J.S. was often fussy, especially at night, and that he would "posture" or bunch up and scream and turn red. The defense also called M.S. back to the stand to testify that J.S. postured, causing him to arch his back and turn red. Missing from the trial was evidence from the defense's proposed expert Dr. Thomas Young. The State had filed a motion in limine requesting he be excluded from testifying. After an evidentiary hearing on the motion, the district court excluded his testimony—holding Young's methods did not meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The jury convicted Lyman of felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. But it ac- quitted him of aggravated sodomy. Lyman later filed a motion for a new trial. It also requested a change of judge for the remainder of the posttrial matters, alleging he had been sleeping during the trial. Both requests were denied. The judge imposed a life sentence for felony murder, 41 months for aggravated battery, and 32 months for abuse of a child, with both lesser sentences to run concurrent with the life sentence. More facts will be added as necessary to the analysis.

ANALYSIS

Issue 1: Did the district court err by denying Lyman's motion for new trial?

Lyman argues the district court (1) abused its discretion in denying his motion for a new trial based on newly discovered evidence concerning the prosecutor, Chris Biggs; and (2) erred in

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State v. Lyman denying it because the State failed to disclose this exculpatory evidence when it came to light before trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

Hearing on the Biggs affidavit

While Lyman's appeal was pending in our court, the State served his counsel with a disclosure of "potential exculpatory evidence" by Biggs, who prosecuted the case. In short, Biggs, who has had memory issues as a result of illness, believed he might have seen the family at a Wal-Mart two days before J.S.'s death, and he felt compelled to disclose this fact in case it might lead to exculpatory evidence. This court remanded for a hearing. The same judge who had presided over the jury trial—Judge Steven L. Hornbaker—held a hearing on the newly discovered evidence. There, Biggs confirmed that he had checked the date he filled the prescription at Wal-Mart and the date of his debit card records to confirm he was at the Wal-Mart on Friday, September 13, 2013. He testified that he was not yet working for the county attorney's office at that time. But, in preparing for the trial, he felt that there was something on the tip of his tongue about a connection between the Wal-Mart incident and the Lyman case. Biggs testified it was possibly not even the night of September 13 that he saw a woman yank a child by the arm. He remembered being at the pharmacy and purchasing patches and pieced the rest together from phone, debit card, and pharmacy records. Solely from these records, he determined that was the only day he was at the Wal-Mart pharmacy in September 2013. But as he stated in the affidavit, Biggs testified his memory could not tell him what year, much less the exact day. Biggs also could not testify with certainty that it was the Lymans whom he saw, only that that the general race, physical stature, and the ages of the children would have been consistent. According to him, the incident was "just a matter of seconds." When it was over, he was satisfied that whatever abuse was going on stopped and went on about his shopping. Biggs thought he might have had a conversation with Steven Opat—his supervisor at the time of trial—about his memories. But he did not recall what he told Opat.

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Opat testified he was the county attorney from 2003 through January 9, 2017, and Biggs was his deputy starting around June 2014. He recalled having several conversations daily with Biggs about the Lyman cases—both Lyman's and Tammarisk's criminal and child in need of care cases (for E.L.). But he did not remember any conversation about a conflict or exculpatory evidence. Detective Odell testified he never had any conversations with Biggs regarding his memory of possibly seeing a woman snatch up a child by the arm at Wal-Mart. He did prepare a probable cause arrest affidavit with a timeline of the case. There, he reported one subject had informed him the family went to Wal-Mart on the morning of Saturday, September 14, 2013—not Friday, Septem- ber 13, when Biggs was there. The timeline reflected this and showed that the adults dropped the boys off at the babysitter's Fri- day night—September 13—before going to a store. But it did not identify which store.

Ruling denying the motion for new trial

The district court held that the Biggs evidence could not have been discovered through the exercise of due diligence by defense counsel. But the court also held the evidence was neither relevant nor credible. The court relied heavily on the total absence of corroborating evidence showing the family was at Wal-Mart on Fri- day, September 13. The court reviewed the evidence, including the hearing testimony and Lyman's taped police interview. It specifically observed Lyman said during that interview of Sunday, September 15, that he picked the boys up from the sitter and went straight home on Friday, September 13. And no one testified that the family was at Wal-Mart that night. The court concluded Biggs' testimony that he even saw the Lyman family was pure speculation. And finally, the court found the evidence against Lyman was "substantial and damning." There was

"evidence of his dislike for [J.S.], pictures of him abusing [J.S.] in the past and computer evidence that Lyman searched the internet seeking information on 'shaken baby' the week prior to the death of [J.S.]. The many other injuries to [J.S.] could not have been received in the way Lyman described according to the medical experts. Many of the statements of Christopher Lyman did not add up. He got up at one point when Detective [ODell] was not in the interview room

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State v. Lyman and said, 'my life is over.' There is a plethora of the evidence upon which the jury could rely to convict Mr. Lyman. There is more than sufficient evidence to convict in this case and as a practical matter, Mr. Biggs's memories, even if admitted would not cause a different verdict because it is not credible."

Thus, the court concluded there was no reasonable probability that the evidence would produce a different result if a retrial was granted. So it denied Lyman's motion.

A. Did the district court abuse its discretion in denying the motion for a new trial based on newly discovered evidence?

Lyman specifically argues Biggs' statement was material because Lyman asserted his innocence, making the primary issues in the case "who, what, where & when, caused the injuries to [J.S.], which ultimately resulted in his death." As a result, he contends had this evidence been available at trial, it would have been consistent with his defense.

Standard of review

An appellate court reviews the district court's decision on a motion for new trial for an abuse of discretion. State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016). "'"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 on an error of fact."' State v. Mattox, 305 Kan. 1015, 1029-30, 390 P.3d 514 (2017)." State v. Butler, 307 Kan. 831, 852, 416 P.3d 116 (2018). Here, Lyman bears the burden of demonstrating such abuse. See State v. Warren, 302 Kan. 601, 614, 356 P.3d 396 (2015).

K.S.A. 22-3501 and newly discovered evidence

The right to a new trial for newly discovered evidence is set out in K.S.A. 2018 Supp. 22-3501(1):

"The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other

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State v. Lyman grounds shall be made within 14 days after the verdict or finding of guilty or within such further time as the court may fix during the 14-day period." (Empha- sis added.)

To establish the right to a new trial on this basis, a criminal defendant must show: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial. Warren, 302 Kan. at 615. In determining whether new evidence is material, the trial judge must assess the credibility of the newly proffered evidence. The appellate court does not reassess the judge's credibility determination. 302 Kan. at 615-16.

Discussion

Lyman contends corroborating evidence exists for Biggs' statement. First, Lyman points to evidence that J.S. was fussy on Friday, September 13, which Lyman equates to pale in color and an indication that his injuries might have occurred prior to the night of Saturday, September 14, or the early morning hours of Sunday, September 15. Lyman also points to a reference in Detec- tive ODell's probable cause affidavit that he and Tammarisk went to the store on Friday September 13. But the affidavit shows the Lymans dropped off the children at the babysitter's before they went to the store. Furthermore, the store is not identified. Next, Lyman relies on the medical evidence from Mitchell and Frazier, and Lowe's opinion that the injury could have been caused anywhere from six hours to seven days before J.S. arrived at the hospital. Last, Lyman cites testimony from family members and his supervisor that he was a loving father, they had never seen him be violent or injure any child, and it would be out of character for him to intentionally injure J.S. The State responds that the Biggs evidence is inadmissible because it is not relevant under K.S.A. 60-401(b). According to the State, there is no tendency in reason to prove any material fact because Biggs recalled too few details to even identify who he saw at the Wal-Mart. And, even if this evidence were relevant, it is not material enough to have changed the trial's result.

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We need not thoroughly consider the first prong of the test for newly discovered evidence because we agree with the district court on the second. That is, the newly discovered evidence is not of such materiality that it would be likely to produce a different result upon retrial. Warren, 302 Kan. at 615. The district court specifically determined that Biggs' memories regarding an incident he witnessed at a Wal-Mart are so uncertain as to be unreliable. Biggs did not remember with any certainty the year that he may have witnessed the incident. And he cannot confirm with any certainty the identity of the family he observed. There is no evidence in the record mentioning a Lyman family trip to Wal-Mart other than the probable cause affidavit, and it shows they went Saturday morning September 14. And testimony from the babysitter, Drake, reveals that J.S. was at her house on the evening of Friday, September 13. To reverse the district court under these circumstances would be an improper reassessment of the judge's credibility determination. See 302 Kan. at 615-16. Fur- thermore, the evidence against Lyman, especially the medical testimony, is overwhelming.

B. Did the district court err by denying the motion for a new trial based on the State's failure to produce exculpatory evidence?

Lyman alleges the State committed a Brady violation because Biggs did not come forward with this evidence before the trial. See Brady v. Maryland, 373 U.S. 83. The State responds there can be no Brady violation because the so-called evidence does not tend to establish Lyman's innocence nor undermine any of the witnesses' reliability. Whether the nondisclosure was intentional (which the State denies) or inadvert- ent, the evidence was not material enough to establish prejudice.

Standard of review

Our standard of review is unlimited for the existence of a Brady violation with deference given to the district court's findings of fact. State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012).

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Discussion

Lyman argues that if he had known of the exculpatory Biggs evidence, he would have been able to seek other avenues for his defense, such as implicating Tammarisk or challenging the timing of the injury. Three components or essential elements must exist in a Brady violation claim: (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) the evidence must be material so as to establish prejudice. 294 Kan. at 506. As discussed above, the Biggs evidence fails to meet key elements of a Brady violation claim. The evidence is not credibly exculpatory or impeaching. Biggs' account of the Wal-Mart incident is too speculative and not corroborated by other evidence. Nor is it so material as to establish prejudice, given the large amount of contrary testimony, as the district court articulated. At trial Lyman did challenge the timing of J.S.'s injury, but the overwhelming medical evidence shows that once the injury occurred, J.S. would not have been responsive. In other words, any earlier unwell pallor or sickness such as allegedly seen at Wal-Mart on Friday could not have caused the brain injury of this magnitude seen late Saturday night. And while Lyman could have implicated Tammarisk as the only other adult in the home the night of J.S.'s injury, he repeatedly told others she was asleep when he checked on J.S.

Issue 2: Did the district court abuse its discretion in excluding Lyman's proposed expert witness for failure to satisfy the Daubert test?

Lyman next argues the district court erroneously excluded evidence from his medical expert, Dr. Thomas Young.

Facts

The State filed a motion in limine arguing Dr. Young's methods were unique, not generally accepted in the scientific commu-

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State v. Lyman nity, and not the result of reliable principles and methods. Addi- tionally, he had not reliably applied the principles and methods to the facts of the case. Dr. Young testified at the hearing on the motion that he had created what he alternately called the inferential test or "Young's postulate." He further testified he has held himself out as an expert and used his inferential test to testify for defense attorneys challenging findings of a pathologist in cases involving abusive head trauma. Dr. Young applied his test to conclude a State witness, pediatrician Dr. Frazier, could not surmise child abuse solely from physical evidence. Young also applied his test to conclude that J.S.'s death did not involve trauma but rather his inability to breathe properly on several occasions. Young admitted that no "thought leaders" in the forensic pathology field have adopted the inferential test, that no learned treatise in the field has adopted it, and that no model protocol has been created in the field based on it. The hearing record reveals Young admitted no published articles comment on his inferential test, it has no peer reviewed commentaries, and the "thought leaders" in his profession have refused to consider the topics he has covered. At the conclusion of the hearing, the district court held Dr. Young was clearly qualified to testify based on his medical degree and specialization in forensic pathology. However, regarding his analysis of this case, the court observed that the inferential test Young created and applied here had not been peer-reviewed. The court specifically cited Dr. Young's admission that all of his testimony and opinions in this case were based on his inferential test. Ultimately, the district court granted the motion excluding Dr. Young's testimony, calling the test "junk science." Two weeks later, the court completed a written journal entry summarizing its conclusions and decision to disqualify Dr. Young. In it the court found that in one of Young's publications, he stated, "I will prove to you beyond a reasonable doubt that the God of Abraham, Isaac and Jacob created 'the heavens and the earth' in six literal days." And there Young additionally explained "that his test also could be used to prove that the theory of evolu- tion has no merit."

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State v. Lyman

Standard of review

A district court's admission of expert testimony is generally reviewed for an abuse of discretion. To the extent interpretation of statutes is concerned, review is de novo. In re Care & Treat- ment of Cone, 309 Kan. 321, 325, 435 P.3d 45 (2019); see State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). "'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 on an error of fact."' Mattox, 305 Kan. at 1029-30.

Discussion

For many years, Kansas followed the test set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); see In re Girard, 296 Kan. 372, 376, 294 P.3d 236 (2013). The Frye test requires that before expert scientific opinion may be admitted into evidence, the basis of the opinion must be generally accepted as reliable within the expert's particular field. 296 Kan. at 376. Then in 2014, the Kansas statute governing expert testimony, K.S.A. 60-456(b), was changed to read as follows:

"If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case." (Emphasis added.) K.S.A. 2018 Supp. 60- 456(b); L. 2014, ch. 84, § 2.

Earlier this year, we held that the 2014 changes now made K.S.A. 2018 Supp. 60-456(b) substantively identical to Federal Rule of Evidence 702, following the holding in Daubert, 509 U.S. 579; see Cone, 309 Kan. at 325. So we concluded the Daubert standard had been legislatively adopted in Kansas, and we applied it in Cone. 309 Kan. at 325, 327. Moreover, we have held other federal caselaw interpreting Federal Rules of Evidence can be persuasive. See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976) (finding federal interpretations persuasive where state and federal rules similar).

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We earlier observed that "Daubert demoted Frye's test of 'general acceptance' from 'an absolute prerequisite to admissibility' to simply one factor to be considered in the admissibility cal- culus." Girard, 296 Kan. at 379 (quoting Daubert, 509 U.S. at 588). And in Cone we acknowledged Daubert required the trial judge to perform an evidentiary gatekeeping function.

"In Daubert, the Supreme Court recognized that the Frye test had been superseded by the adoption of the Federal Rules of Evidence. 509 U.S. at 587. However, the Court noted that this did not remove all qualifications for admissibility of scientific evidence; rather, the trial judge has a gatekeeping obligation to ensure that scientific evidence is relevant and scientifically reliable. 509 U.S. at 589." 309 Kan. at 327.

In Cone, we cited Daubert for the list of nonexclusive factors the district courts could consider when fulfilling that gatekeeping requirement, i.e., "to ensure the reliability and relevancy of expert testimony." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). These are (1) whether the theory or technique can be (and has been) tested; (2) whether it has been subject to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique has general acceptance within a relevant scientific community. Daubert, 509 U.S. at 592-94; see Kumho Tire, 526 U.S. at 149-50 (specify- ing four standards); see also Cone, 309 Kan. at 328-32. As we recognized in Cone,

"Daubert emphasized that these factors were not exclusive and that the trial court's overarching inquiry should be the scientific validity, evidentiary relevance, and reliability of the evidence. 509 U.S. at 593-95; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 149-50, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (trial judge's gatekeeping function applies to all expert testimony, not just scientific testimony, and a court may consider the Daubert factors when deciding admissibility)." 309 Kan. at 327.

These factors are nonexclusive because the reliability inquiry must be tied to the particular circumstances of the particular case. As the Supreme Court said in Kumho Tire, "Daubert makes clear that the factors it mentions do not constitute a 'definitive checklist or test.' [Citation omitted.] And Daubert adds that the gatekeeping

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State v. Lyman inquiry must be 'tied to the facts' of a particular 'case.'" Kumho Tire, 526 U.S. at 150. In short, the inquiry is "a flexible one." Daubert, 509 U.S. at 594-95; Kumho Tire, 526 U.S. at 141; see Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) ("[W]e do not deem each of them to be equally applicable [or applicable at all] in every case."). And Kumho Tire teaches that "[t]he trial court must have the same kind of latitude in deciding how to test an expert's reliability . . . as it enjoys when it decides whether or not that expert's relevant testimony is reliable." 526 U.S. at 152. The district court found Dr. Young was qualified to render his opinion by education and experience—thus meeting the first part of K.S.A. 2018 Supp. 60-456(b); see Smart v. BNSF Ry. Co., 52 Kan. App. 2d 486, 494, 369 P.3d 966 (2016) (under the statute, "the court must decide first whether the expert is qualified 'by knowledge, skill, experience, training or education' to render an opinion"). As with Smart's expert, here those qualifications of Dr. Young are not in dispute. 52 Kan. App. 2d at 494. The district court then proceeded to the next step and held Young's proposed testimony was not reliable under Daubert. See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) ("[I]f the expert is sufficiently qualified, the court must determine whether the expert's opinion is reliable by assessing the underlying reasoning and methodology[.]"). The burden to show reliability and relevance was Lyman's. See Nacchio, 555 F.3d at 1241, 1251, 1256 n.21, 1258; Daubert, 43 F.3d at 1316 ("[T]he party presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology."). At the motion in limine evidentiary hearing scheduled by the district court, Dr. Young extensively testified on direct, cross, redirect, and recross during 101 pages of transcript. Oral arguments immediately followed, and the court orally ruled his testimony would be excluded. Two weeks later, after more thoroughly reviewing the exhibits from the hearing (Young's report, biography, different articles from his website, several news articles, Young's 56-page docu-

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State v. Lyman ment, and an "abstract" of a presentation he gave at the World Fo- rensic Festival, International Academy of Forensic Sciences), the court issued an 8-page order detailing the findings it made in its acknowledged gatekeeper role. Among other things, it analyzed using the specific (yet nonexclusive) factors identified in Daubert as shown above. But the heart of its analysis was criticizing Dr. Young's self-created "inferential test" as unreliable. Essentially, his testimony was not "the product of reliable principles and methods" as required by K.S.A. 2018 Supp. 60-456(b). We now address that test. Dr. Young defined his inferential test as follows:

"[O]ne can be reasonably certain if witness accounts of the past are consistent or not consistent with physical evidence in the present, but one cannot reliably surmise past events from physical evidence unless there's only one plausible explanation for that evidence." (Emphases added.)

In short, Young explained that one must consider (1) past events, e.g., eyewitness accounts and (2) current physical evidence. But alone, "the use of a forensic test to surmise complex past events [here, such as cause of death] is so unreliable that such testing should be considered junk science no matter how well the test performs." (Emphasis added.) As he restated,

"[W]ithout a witness account, we really do not know what happened in the vast majority of cases. Science is not a remedy for a lack of knowledge that can only be learned through witness accounts. Science does not take the place of absent witness accounts. Instead, forensic science and the other past event sciences are to be used to test witness accounts . . . for veracity. Anything beyond that is . . . junk science." (Emphasis added.)

The district court found, according to Dr. Young's testimony, "that no other forensic pathologists use this test and that it has not been accepted by the field nor has it been peer reviewed. . . [H]e follows no generally accepted means for coming to his conclusion." More- over, "his method of arriving at a diagnosis are bizarre and out of tune with ALL other forensic scientists." Further, it is a "faulty, untested, un-peer reviewed, theory that only he has adopted." Young repeatedly testified he applied his inferential test to reach his multiple conclusions about the cause and manner of

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J.S.'s death. But he orally altered his test, and its application, even more narrowly as evidenced by the following exchange:

"Q: [I]f the only witness to a homicide is a dead child, we can't conclude how the child died because we don’t have any witnesses? "A: [1] Only if you can demonstrate through a circumstantial evidence situation that it is the only plausible explanation. [2] And even in those cases, you require witnesses." (Emphasis added.)

The import of Dr. Young's inferential test can be summarized by this exchange with the prosecutor during his testimony:

"Q: So in a case where we have a number of undisputed findings from an autopsy, whatever they are, if there are multiple possible causes, this particular inferential test would prevent concluding that it was caused by any one cause. Cor- rect? "A: Sure."

The district court concluded in its journal entry,

"Under Dr. Young's postulate [test], nobody could ever be convicted for a murder which was unwitnessed. The remedy would be archaic. Dr. Young espouses a test that is far afield from our present legal system that allows circumstantial evidence into a case and may form the only evidence needed for conviction. In his testimony, Dr. Young accused forensic experts of using junk science. This court believes that it is Dr. Young who uses junk science." (Emphasis added.)

As shown above, the district court ruled that several of Daub- ert's listed (but nonexclusive) factors clearly had not been met. These include (1) the technique or theory has not been tested; (2) it has not been subject to peer review and publication; and (3) it has not been generally accepted in the scientific community. As in Cone, the court also considered factors not listed in Daubert. First, Young's inferential test was indeed contrary to several fundamental tenets of Kansas evidence law: (a) "There is no distinction between direct and circumstantial evidence in terms of probative value." State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003); and (b) "A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom." State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 (2011), overruled on other grounds by State v. As- torga, 299 Kan. 395, 324 P.3d 1046 (2014). Second, the district court considered "[w]hether experts are proposing to testify about matters growing naturally and directly

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State v. Lyman out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying," citing Daubert, 43 F.3d at 1317. There, the Daubert court explained, "That the testimony proffered by an expert is based directly on legitimate preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were 'derived by the scientific method.'" 43 F.3d at 1317. The 9th Circuit coupled the experts' lack of preexisting or independent research with their lack of peer review and publication to conclude, "It's as if there were a tacit understanding within the scientific community that what's going on here is not science at all, but litigation." 43 F.3d at 1318. Here the district court found Dr. Young was no longer a coroner—and that he uses the inferential test to testify for defense attorneys challenging findings of a pathologist in cases involving abusive head trauma. After reviewing Young's web page, the court "believe[d] that his opinions were developed for purposes of testifying for defendants charged with child abuse." The court added that the web page "specifically calls upon public defenders to hire him as a defense to these types of cases" and "[h]is opinions are tailor-made for defense of child abuse cases and especially those concerning death of a child." Third, the court also considered another Kansas trial court's treatment of Dr. Young's testimony described in State v. Harber, No. 97,372, 2008 WL 4471380 (Kan. App. 2008) (unpublished opinion). There, Young testified at a hearing on a motion to withdraw a plea in a case involving the death of a baby based on mas- sive head trauma without firsthand witnesses. The district court in Harber clearly found Young was not credible and stated he was "'simply out of step with the undisputed facts of the case . . . . So this was a very rare instance where the Court found that the medical testimony from licensed physicians was so wide [of] the mark that it was not worthy of any belief."' 2008 WL 4471380, at *6. The Court of Appeals declined Harber's invitation to reweigh the evidence or evaluate witnesses credibility. Accordingly, it declined to substitute its judgment for that of the district court excluding Young's testimony.

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State v. Lyman

Based on all the above, we cannot conclude the district judge here abused his discretion in excluding Dr. Young's testimony for the doctor's failure to meet Daubert. As the Daubert Court itself said about peer acceptance or even commentary, "[S]ubmission to the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that substantive flaws in methodology will be detected." 509 U.S. at 593. So, "[t]he fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised." 509 U.S. at 594. We acknowledge that a "'reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.'" 509 U.S. at 594. But, "[w]idespread acceptance can be an important factor in ruling particular evidence admissible, and 'a known technique which has been able to attract only minimal support within the community,' [United States v.] Downing, 753 F.2d [1224,] 1238 [(1985)], may properly be viewed with skepticism." (Emphasis added.) 509 U.S. at 594. The Court's decision in Kumho Tire, 526 U.S. at 157, is also illustrative. In affirming the district court's refusal to allow expert witnesses to testify, the Court "found no indication in the record that other experts in the industry use [expert's two-factor test]" and noted that the parties did not refer "to any articles or papers that validate [expert's] approach." See Daubert, 43 F.3d at 1318 n.9 ("That plaintiffs' experts have been unable or unwilling to publish their work undermines plaintiffs' claim that the findings these experts proffer are 'ground[ed] in the methods and procedures of science' and 'derived by the scientific method.' Daubert, 509 U.S. at 590, 113 S. Ct. at 2795, 2796."). In addition to these problems, as previously mentioned the un- dergirding of Young's inferential test contradicts longstanding principles of our evidentiary caselaw. Evans, 275 Kan. at 105 ("no distinction between direct and circumstantial evidence in terms of probative value"); McCaslin, 291 Kan. 697, Syl. ¶ 9 ("conviction of even the gravest offense can be based entirely on circumstantial evidence and inferences fairly deducible therefrom").

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State v. Lyman

At oral arguments before this court, Lyman's appellate counsel pointed out that after the judge excluded Dr. Young's testimony, his trial counsel asked that Young nevertheless be allowed to testify in some fashion. "I think you can forbid him [Dr. Young] to . . . tell his thought processes but I don't think you can prevent him from testifying as to reasonable medical certainty" as he opined in his letter report. (Emphasis added.) Appellate counsel then essentially asked this court to "slice" Dr. Young's opinions, separating those reached using the inferential test from those that are not—and allowing the latter as evidence. We must decline counsel's invitation for several reasons. First, Dr. Young testified he applied the court-rejected inferential test to reach all of his conclusions about the cause and manner of J.S.'s death. So we cannot slice, separate, and salvage any conclusions he reached in not applying this test. Second, simply saying—without explanation of his thought process—that he formed his opinions "to reasonable medical certainty" does not mean he actually did so. Cf. Nacchio, 555 F.3d at 1258 ("'The trial court's gatekeeping function requires more than simply "'taking the expert's word for it."' [Citation omitted.] '[N]othing in either Daubert or the Fed- eral Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.' Joiner, 522 U.S. at 146."). Third, the overarching subject of the inquiry is the evidentiary relevance and reliability of the principles that underlie a proposed expert submission. Daubert, 509 U.S. at 594-95. In other words, "The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." 509 U.S. at 595; Nacchio, 555 F.3d at 1241 ("In making a reliability determination, '[g]enerally, the district court should focus on an expert's methodology rather than the conclusions it generates.'"); Daubert, 43 F.3d at 1318 ("[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology."). In short, Dr. Young's principles and methodology are flawed. So we do not examine—in a vacuum—whether his opinions are within reasonable medical certainty. As our Court of Appeals stated in Smart,

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State v. Lyman

"despite the flexibility granted to district courts, the text of our statute requires them to ensure that proffered expert testimony is based on sufficient facts or data and is the product of reliable principles and methods, and that the witness has reliably applied the principles and methods to the facts of the case. K.S.A. 2015 Supp. 60-456." (Emphasis added.) 52 Kan. App. 2d at 500.

There, the Court of Appeals concluded there was "no showing that he applied to those facts a reliable principle and method to reach his conclusions." (Emphasis added.) 52 Kan. App. 2d at 500. And finally, we agree "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Kumho Tire, 526 U.S. at 152. As a result, "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 trial judge broad latitude to determine." 526 U.S. at 153. We conclude Lyman failed to show the district court abused its discretion.

Issue 3: Did the district court err by allowing the State to introduce evidence of Lyman's prior bad acts?

The State had filed a pretrial motion to admit evidence of Lyman's prior abuse of J.S., arguing it should be admitted to show modus operandi, intent, or absence of mistake or accident under K.S.A. 60-455. The evidence included several photographs of J.S. found on Lyman's phone, those later described at trial by Detec- tive Arnold. The State proffered that these pictures taken on July 25— about a month and a half before J.S.'s death—showed Lyman abusing J.S. by pressing his fingers into J.S.'s eyes and forehead, causing bruising on his eyes and forehead, and then posing the bruised J.S. with a pacifier that said, "bad seed." It argued the evidence showed the identity of the perpetrator and his modus operandi—abusing the child by applying a hand to the head forcefully enough to leave bruises—because the later autopsy photographs showed very similar bruising patterns. The State character- ized the July incident as a dry run for J.S.'s September abuse and death.

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State v. Lyman

The State also proffered that the same day as those photos M.S. noticed head and waist bruising on J.S. and contacted Tammarisk, asking what had happened to her son. Lyman responded to the motion by arguing other people were around that day and one of them could have caused the injuries. But he did not object to identifying him as the one in the photos pressing in J.S.'s eyes with his hand. The court ruled the evidence was relevant to show a pattern of abuse and would be admissible at trial because it was not more harmful than probative. It later gave the jury an instruction limiting this evidence "solely for the purpose of proving defendant's intent and Modus Operandi" (which it defined as "the general method used by a defendant to perpetuate a similar but totally unrelated act"). Lyman contends the evidence was not relevant to the crimes charged; but if so, it was more prejudicial than probative. Specif- ically, Lyman challenges the admission of the pictures from Lyman's phone showing him covering or poking J.S.'s eyes. Lyman argues the error was exacerbated by the admission of the picture of J.S. with a pacifier in his mouth saying "bad seed." The State counters that the pictures and the bad seed nickname are not K.S.A. 60-455 evidence as they are not a crime or a civil wrong.

Standard of Review

When reviewing the admission of evidence under K.S.A. 2018 Supp. 60-455(b), the court follows a three-step analysis:

"'First, the trial court must determine whether the fact to be proven is material under K.S.A. [2017] Supp. 60-455(b). That is whether it relates to one of the material facts identified in that provision—motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident—or some other material fact other than propensity to commit crime. To be material the fact must have some real bearing on the decision in the case. An appellate court reviews this determination independently, without any required deference to the trial court. "'Second, the trial court must determine whether the material fact is disputed. If so, the trial court must also determine whether the evidence is probative of the disputed material fact, that is, whether it has any tendency in reason to prove the fact. An appellate court reviews this determination for an abuse of discretion.

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State v. Lyman

"'Third, the trial court must determine whether the probative value of the evidence outweighs the potential for producing undue prejudice to the defendant. An appellate court's standard for reviewing this determination is also abuse of discretion. [Citations omitted.]' State v. Barber, 302 Kan. 367, 374-75, 353 P.3d 1108 (2015)." State v. Anderson, 308 Kan. 1251, 1257, 427 P.3d 847 (2018) (applying these steps in a child abuse case).

See also State v. Gunby, 282 Kan. 39, 56, 144 P.3d 647 (2006) (describing the steps for analysis of 60-455 evidence).

Discussion

The statute itself, K.S.A. 2018 Supp. 60-455, provides in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion. "(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. "(c) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, in any criminal action other than a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kan- sas Statutes Annotated, or K.S.A. 2018 Supp. 21-6104, 21-6325, 21-6326 or 21- 6419 through 21-6422, and amendments thereto, such evidence is admissible to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes when the method of committing the prior acts is so similar to that utilized in the current case before the court that it is reasonable to conclude the same individual committed both acts." (Emphasis added.)

Here, despite the State's claim, the photographs with Lyman's hand on J.S.'s face constitute evidence under K.S.A. 2018 Supp. 60-455. First, they document the assault of a child sufficient to visibly distress him and leave bruises on his face. See K.S.A. 2018 Supp. 60-455(a) (evidence that a person committed a crime). Sec- ond, they are so similar to the September medical observations and conclusions (regarding use of a hand or other means forcefully enough to leave bruises on the same general areas of J.S.'s face) that "it is reasonable to conclude the same individual committed both acts"—in July and then in September. Third, they are relevant

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State v. Lyman to show Lyman's modus operandi, a disputed material fact. See State v. Prine, 297 Kan. 460, 465, 475, 479-80, 303 P.3d 662 (2013) (Prine II) (discussing 2009 legislative additions to 60-455 subsection [c], which were an "apparent effort to modify the 'strik- ingly similar' or 'signature' standard enunciated in Prine I" [State v. Prine, 287 Kan. 713, Syl. ¶ 6, 200 P.3d 1 [2009]). In their effect, these "hand" photographs contradict Lyman's claim that J.S.'s previous health and respiratory issues—and not Lyman—caused his death. Moreover, the district court did not err in its next step: finding their probative value outweighed their prejudicial value. See Anderson, 308 Kan. at 1257. Among other things, the jury additionally knew that during a break from police questioning, Lyman admitted aloud to himself that "[m]y life is over." And it already knew that after Lyman learned from Tam- marisk of some issues J.S. was having just three days before J.S.'s death, Lyman responded "leave [J.S.] to his own demise." And of course numerous physicians opined J.S. died of physical trauma to his head—caused while in Lyman's custody. And even if it were error to admit this evidence, there was other unchallenged evidence that Lyman injured J.S. on that July day in Ohio before the move to Kansas. This includes the testimony of M.S. and T.S. and the text messages between Tammarisk and M.S. on "Ice Mom's" phone about J.S.'s bruises. See Barber, 302 Kan. at 375 ("[E]ven if we assume that the admission was erroneous under K.S.A. 60-455, we could not reverse on that basis. Other testimony, not challenged by Barber on appeal, was bound to inflict the same or greater damage than that inflicted by Brown's testimony on the defense case."). Finally, Lyman is unclear whether he claims the court erred in admitting the "bad seed" photo or merely whether its already dam- aging effect was exacerbated by the hand photographs. Assuming the former, we see no error because it was relevant to show marks, e.g., bruising on J.S.'s face on July 25. The bad seed pacifier also showed Lyman's attitude toward J.S., i.e., his motive. See State v. Carapezza, 286 Kan. 992, 999, 191 P.3d 256 (2008) (State may admit evidence of motive to explain why the defendant may have committed the crime or crimes at issue even though motive is not

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State v. Lyman an element of the offense). Moreover, as Lyman himself acknowledges, the district court rejected many other prosecutorial attempts to reference "bad seed"—which lessened the photo's prejudicial effect.

Issue 4: Did the district court judge commit judicial misconduct by sleeping during the trial?

After the jury's verdict, Lyman filed a "Motion for Change of Judge" for the remainder of the posttrial matters and attached a hand-written letter from one of the trial spectators. The Reverend Richard Elliott stated he "observed on various occasions what appeared to me to be the judge sleeping." The district's chief judge, Michael Powers, reviewed the motion and later issued an order, noting the technical inadequacies of Lyman's filing under K.S.A. 20-311d. Specifically, Lyman's request failed to follow the format of a motion or an affidavit. But Judge Powers reviewed the merits of the request anyway and concluded it had none. Lyman concedes he did not ask for a mistrial but submits the issue of a judge sleeping during a criminal trial is structural and may be raised at any time. He cites the Court of Appeals opinion in State v. Johnson, 53 Kan. App. 2d 734, 391 P.3d 711 (2017), rev'd 310 Kan. 909, 453 P.3d 281 (2019). The State responds no record evidence exists to show Judge Hornbaker was asleep during the trial. It argues Lyman's only support is the letter from Elliott who is from the Ohio hometown of Lyman's family, and points out the letter is not notarized. The State distinguishes the facts here from those in Johnson because there the judge admitted he was sleeping.

Standard of review

Appellate courts have unlimited review over allegations of judicial misconduct. State v. Moyer, 306 Kan. 342, 369-70, 410 P.3d 71 (2017) (unlimited review over whether a trial court judge's recusal is required); State v. Robinson, 293 Kan. 1002, 1032, 270 P.3d 1183 (2012) (unlimited review in evaluating an affidavit in support of a motion for recusal filed under K.S.A. 20-311d).

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The party alleging judicial misconduct bears the burden of establishing that misconduct occurred and that the misconduct prejudiced the party's substantial rights. State v. Hudgins, 301 Kan. 629, 637-38, 346 P.3d 1062 (2015). See also State v. Boothby, 310 Kan. 619, 625, 448 P.3d 416 (2019) (citing State v. Miller, 308 Kan. 1119, 1154, 427 P.3d 907 [2018] (defendant must demonstrate the misconduct prejudiced his substantial rights). Further- more, an allegation of judicial misconduct is reviewable on appeal despite the lack of a contemporaneous objection when the defendant claims that the right to a fair trial was violated. State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010).

Discussion

The procedure for a change of judge is provided in K.S.A. 20- 311d:

"(a) If a party or a party's attorney believes that the judge to whom an action is assigned cannot afford that party a fair trial in the action, the party or attorney may file a motion for change of judge. The motion shall not state the grounds for the party's or attorney's belief. The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case. If the judge disqualifies the judge's self, the action shall be assigned to another judge by the chief judge. If the judge refuses to disqualify the judge's self, the party seeking a change of judge may file the affidavit provided for in subsection (b). If an affidavit is to be filed it shall be filed immediately. "(b) If a party or a party's attorney files an affidavit alleging any of the grounds specified in subsection (c), the chief judge shall at once determine, or refer the affidavit to another district judge for prompt determination of, the legal sufficiency of the affidavit. If the affidavit is filed in a district court in which there is no other judge who is qualified to hear the matter, the chief judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determine the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the case shall be assigned to another judge. "(c) Grounds which may be alleged as provided in subsection (b) for change of judge are that: (1) The judge has been engaged as counsel in the action prior to the appointment or election as judge. (2) The judge is otherwise interested in the action. (3) The judge is related to either party to the action. (4) The judge is a material witness in the action. (5) The party or the party's attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial

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State v. Lyman

trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists. "(d) In any affidavit filed pursuant to this section, the recital of previous rulings or decisions by the judge on legal issues or concerning the legal sufficiency of any prior affidavits filed by counsel for a party in any judicial proceeding, or filed by such counsel's law firm, pursuant to this section, shall not be deemed legally sufficient for any belief that bias or prejudice exists." (Emphases added.)

In its de novo review of the legal sufficiency of an affidavit in support of a motion for a change of judge, the appellate court must decide sufficiency, not the truth of the facts alleged. Robinson, 293 Kan. at 1032. As the language of K.S.A. 20-311d and Robinson make plain, under our facts an affidavit was required for the chief judge to review. And an affidavit is defined as, "'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 affirmation.'" (Emphasis added.) State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 50, 392 P.3d 68 (2017) (quoting State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397 [1976]). Here, no reference to a person with such oath-administration authority appears in any document filed by Lyman. Moreover, while his motion is subtitled "Affida- vit," it is signed only by counsel, the purported affiant. Similarly, Elliott's attached letter is signed only by him. Cf. Knight, 219 Kan. at 867 (when purported affidavit is simply acknowledged before a notary public, requirements for affidavit are not met). So the requirements of K.S.A. 20-311d for changing a judge have not been met. 219 Kan. at 868 (holding where no "affidavit" is filed, a motion for change of judge under 20-311d is insufficient and must fail). Even reviewing Lyman's motion on the merits, the record does not show Lyman objected during trial, requested a sidebar, or otherwise observed a sleeping judge. But his counsel was ob- servant enough to notice—and make a record—that the judge seemed emotional during M.S.'s testimony. As the State points out, this was a hotly contested jury trial with numerous issues and objections during the trial. And the record does show the court

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State v. Lyman actively engaged with and responsive to the parties, jury, witnesses—and at times the observers in the court room, asking them to refrain from disrupting the proceedings. Finally, we agree with the State that this case is factually dis- tinguishable from Johnson, 53 Kan. App. 2d at 734. There the judge admitted to nodding off. In our recent review of that Court of Appeals decision, we held that under the circumstances not even a judge who admits to brief nodding off constitutes structural error in a trial. See State v. Johnson, 310 Kan. 909, 919, 453 P.3d 281, 287 (2019).

Issue 5: Did the district court err by prohibiting Lyman from in- troducing medical records that were subject to a written stipulation?

Lyman argues his right to a fair trial was unduly prejudiced when, after the district court excluded Dr. Young from testifying, it then sustained the State's objection to the introduction of medical records, even though they were subject to a stipulation. The State admits a stipulation existed to waive all hearsay or foundation objections to the medical records for direct and cross- examination at trial. But it argues that because Young did not testify, the records he reviewed to form his opinion were not covered by the stipulation.

Standard of Review

We apply an abuse of discretion standard of review to a district court's ruling on the enforceability of a stipulation. Hardesty v. Coastal Mart, Inc., 259 Kan. 645, 650, 915 P.2d 41 (1996). "'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 on an error of fact."' Mattox, 305 Kan. at 1029-30.

Discussion

The signed stipulation states in relevant part that the parties "agree to waive hearsay or foundation objections at trial . . . as to the admissibility of medical records utilized to form the basis of the opinion of an expert witness under K.S.A. 60-456 and K.S.A.

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State v. Lyman

60-458." Counsel for the State explained to the court, without objection, that "[w]e've stipulated to the admissibility of medical records that form the basis of opinion of people for purposes of their direct and cross-examination." (Emphasis added.) During trial, the State's counsel argued there "was a stipulation where the medical records were relevant for experts to consider in reaching their conclusions." And because Dr. Young would not be testifying about his conclusions, the State was concerned that Lyman would simply offer medical records that obviously could not form the basis of his opinion. The State objected, and the court sustained. Lyman's brief does not explain how prohibiting introduction of the medical records actually prejudiced his right to a fair trial. But we observe the record discloses that when Dr. Young was excluded from testifying, Lyman did not have a witness available to introduce the medical records from J.S.'s earlier medical treatment. Some of this evidence was admitted other ways, however, such as M.S.'s testimony about J.S.'s earlier hospitalizations for RSV and the State's medical experts who testified about eliminating other causes of death in concluding J.S. died from child abuse. Based upon the language of the stipulation and its accompanying explanation—to which Lyman did not object—we cannot conclude the district court abused its discretion. See Mattox, 305 Kan. at 1029-30.

Issue 6: Did cumulative errors require reversal and remand for a new trial?

In his final argument, Lyman alleges cumulative errors denied him a fair trial. He argues that the combination of the judge's prohibiting Dr. Young from testifying, allowing the K.S.A. 60-455 evidence of Lyman's prior bad acts, sleeping during the trial, and failing to grant a new trial based on Biggs' exculpatory evidence warrants a new trial. He specifically claims a new trial is necessary due to these errors and the fact that the evidence was not overwhelming—i.e., even if we conclude J.S. died as the result of child abuse, no evidence directly ties Lyman to the fatal acts. To that end, he points out a number of witnesses testified he was a loving father and caregiver.

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State v. Lyman

Standard of Review

This court uses a de novo standard when determining whether the totality of circumstances substantially prejudiced a defendant and denied a fair trial based on cumulative error. Anderson, 308 Kan. at 1266.

Discussion

Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. Anderson, 308 Kan. at 1266-67. But because there are no errors to accumulate, this last argument has no merit. And even assuming error in admitting K.S.A. 60-455 evidence, a single error cannot constitute cumulative error. State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009) ("The presence of one error is obviously insufficient to accumulate.").

The judgment of the district court is affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 114,312 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. Johnson.

²REPORTER'S NOTE: Retired Chief Justice Lawton R. Nuss was assigned to participate in the final decision of No. 114,312 under the authority vested in the Supreme Court by K.S.A. 20-2616.

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State v. Jenkins

No. 118,120

STATE OF KANSAS, Appellee, v. SHERMAN NORMAN JENKINS, Appellant.

___

SYLLABUS BY THE COURT

1. EVIDENCE—Audio Recordings Qualify as Writings. The seven-factor test for authenticating 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.

2. SAME—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 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.

3. SAME—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.

4. MOTOR VEHICLES—"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.

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed January 10, 2020. Affirmed.

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

Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Sherman Norman Jenkins led police on two separate vehicle chases in one night. The second chase ended in a fatal crash. A jury convicted Jenkins of first-degree felony murder, two counts of aggravated battery, two counts of felony fleeing and

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State v. Jenkins eluding police, one count of theft, one count of driving without tail lamps, and one count of driving while suspended. Jenkins directly appeals his convictions to this court, raising two arguments. First, he argues that the district court judge erred by admitting as evidence recorded jail calls made using Jenkins' assigned personal identification number. We hold that the calls were properly admitted. Second, Jenkins challenges the constitutionality of one of the options within a means of the felony fleeing and eluding statute. We reject his contention that the provision is unconstitutionally vague. We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

During the early morning hours of February 4, 2016, Topeka- area law enforcement participated in two different vehicle pur- suits. The first pursuit involved a minivan and began shortly before 3 a.m. The van drove eastbound on Interstate 70 from Topeka and did not pull over, despite a law enforcement officer's use of lights and sirens. After the van accelerated to 90 miles per hour, the pursuit was called off. A different officer reinitiated pursuit after he observed the van make a U-turn at the I-70 toll plaza parking lot and return westbound toward Topeka. During this pursuit, the van's driver ran a red light, twice failed to signal before exiting, and failed to stop at three stop signs. The pursuit ended in North Topeka, where the van went off-road and crashed. Law enforcement did not find the van's driver at the scene of the crash but did find a female passenger in the van. The second chase was set in motion a little after 4 a.m., when Craig Droge realized that someone had stolen his friend Donella Davidson's pickup from outside his home in North Topeka. About an hour later, Officer Kurtis VanDonge noticed a pickup driving in North Topeka with nonoperational taillights. He followed the pickup and activated his lights, then his siren, and eventually his public announcement system. Despite this, the pickup's driver did not pull over. VanDonge's bodycam recorded the ensuing pursuit, which

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State v. Jenkins took a circuitous route through North Topeka before crossing the Kansas Avenue bridge into downtown Topeka. During this pursuit, the pickup's driver committed numerous moving violations. He twice turned into an incorrect lane, three times failed to maintain a single lane, drove on the left side of a two-way street, three times failed to come to a complete stop at a stop sign, and turned left through a red light. The driver also ma- neuvered around at least one set of stop sticks placed in the road by law enforcement. The pursuit ended when the pickup ran a red light at the intersection of Sixth Street and Topeka Boulevard and hit two cars. The crash injured Danny Williams Jr. and Benjamin Falley, the drivers of the two cars. It killed Mia Holden, a passenger in Falley's car. Immediately after the crash, police officers removed the driver and only occupant from the pickup. This person was later identified as defendant Jenkins. Jenkins was taken to the hospital, then moved to the Shawnee County Jail. The State charged Jenkins with first-degree felony murder, felony fleeing and eluding, theft, two counts of aggravated battery, driving without taillights, and driving with a suspended license. At the jail, Jenkins was assigned a unique personal identification number (PIN) to be used to make outgoing calls on the jail's Securus telephone system. Jenkins' PIN was used to make six calls on February 5, 2016. A detective listened to recordings of these calls. There were two primary speakers, one male and one female. The male speaker on the calls discussed not only the pickup chase and fatal crash, but also the earlier van chase. As a result, the State charged Jen- kins with a second count of felony fleeing and eluding for the van chase. At trial multiple law enforcement officers detailed their in- volvement with the chases and subsequent investigation. Officers Josh Miller and Joshua Franco described their pursuit of the van and the multiple moving violations they witnessed. The State played VanDonge's bodycam footage of the pursuit of the pickup while VanDonge narrated, explaining each moving violation he witnessed as it appeared onscreen.

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State v. Jenkins

Lieutenant Matt Biltoft from the Shawnee County Department of Corrections testified about the Securus software system. He said that each inmate is assigned a unique PIN when admitted to the jail. Inmates must use a PIN to make an outgoing call. The Securus software system records each outgoing call. Biltoft, as a Securus operator, can search the system using an inmate's name or PIN and identify all outgoing calls made with the inmate's PIN. When Biltoft searched the Securus system for all calls made with Jenkins' assigned PIN, he found six calls made using Jenkins' PIN on February 5, 2016. He listened to the calls and noted that "it was all similar information." Biltoft said that he did not know Jenkins' voice from any previous interactions and that he did not know who the other speakers on the calls were. The State moved to introduce recordings of five calls into evidence. Jenkins objected; he argued that the State failed to sufficiently identify him as the male speaker on the calls. The district judge ruled that the State sufficiently established the identities of the speakers and overruled Jenkins' objection. The district judge stated:

"[T]he circumstances and the nature of the recordings themselves identifies the authenticity and the identity of Mr. Jenkins speaking because this is the day after the fatality crash and there are statements made by Mr. Jenkins recognizing that he had been in that collision and that he had killed a woman in that collision. "So circumstantially, the odds that another person on the 5th of February calls up his girlfriend and confesses to being in a high-speed pursuit the night before in which a woman was killed is highly unlikely to the point where there's sufficient basis now for the Court to say this is an authentic copy of those jail calls."

The State published the calls during Detective Jesse Sherer's testimony. Sherer said that during the six phone calls Jenkins made to a woman referred to as "Connie," Jenkins "accurately speaks about the facts of both chases that occurred in the morning of February 4th, including the types of vehicles that were involved, the general locations of where those chases occurred, how they occurred," and even "mentions stealing a truck and that it was involved in an accident at the location of the Sixth and Topeka accident." Sherer also testified that in one call Jenkins admitted fleeing on foot from the location of the van crash. In addition, Sherer said, according to Department of Motor Vehicle records,

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State v. Jenkins

Jenkins' driver's license was revoked at the time of the two pur- suits. Officer Ross Gustafson testified that the Vehicle Identifica- tion Number on the pickup identified it as belonging to Davidson. And the Shawnee County coroner testified that Holden died from several lethal injuries caused by the crash. Jenkins did not put on any evidence. The district judge gave the jury two separate fleeing and eluding instructions, one for each charge. In the first instruction—pertaining to the pickup pursuit—the district judge instructed the jury about four possible options within a means by which Jenkins may have committed felony fleeing and eluding: driving around a tire deflating device placed by a police officer (K.S.A. 2015 Supp. 8-1568[b][1][B]); engaging in reckless driving (K.S.A. 2015 Supp. 8-1568[b][1][C]); in- volvement in a motor vehicle accident (K.S.A. 2015 Supp. 8- 1568[b][1][D]); and committing five or more moving violations (K.S.A. 2015 Supp. 8-1568[b][1][E]). This instruction also defined "reckless driving." In the second fleeing and eluding instruction— pertaining to the van pursuit—the district judge listed only one option within a means: committing five or more moving violations. The district judge also instructed the jury about the definition of "moving violations," taking language from K.A.R. 92-52-9(a). The instruction said that "moving violations" included:

 Driving with a suspended, canceled, or revoked license. (K.S.A. 8-262)  Failing to stop at a stop sign. (K.S.A. 8-1528[b])  Failing to stop at a red light. (K.S.A. 8-1508[c])  Failing to maintain a single lane. (K.S.A. 8-1522[a])  Driving in the left lane while approaching a hill, curve, intersection, or railroad grade crossing. (K.S.A. 8-1519)  Making an unsafe turn or lane change. (K.S.A. 8-1548)  Turning into the incorrect lane. (K.S.A. 8-1545)  Failing to signal a turn or lane change. (K.S.A. 8-1548)

During the portion of its closing addressing fleeing and eluding, the State addressed only the pickup pursuit and not the van pursuit. The State argued that Jenkins committed eight moving violations during the pickup chase: driving with a revoked license,

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State v. Jenkins failing to stop at a stop sign, failing to stop at a red light, failing to maintain a single lane, driving on the wrong side of the road, failing to signal a turn, making an improper turn, and failing to signal another turn or lane change. The State directed the jury to Van- Donge's bodycam footage and testimony as evidence of these violations. The jury found Jenkins guilty on all eight counts. The district judge merged the felony fleeing and eluding conviction pertaining to the pickup pursuit into the felony-murder conviction and thus sentenced Jenkins on only seven counts. Jenkins received a sentence of life without parole for at least 25 years for first-degree murder. His sentences on the remaining counts totaled 56 months and 5 days; the district judge ran those sentences concurrent to each other but consecutive to the life sentence. Jenkins timely appealed.

DISCUSSION

Jenkins first argues on appeal that he is entitled to a new trial because the district judge erred by admitting the jail phone calls into evidence. Second, he argues that K.S.A. 8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute dependent on five or more moving violations, is unconstitutionally vague. As a result, he argues, this court must reverse his convictions for felony fleeing and eluding and felony murder. We address each question in turn.

Admission of Jail Calls

Because Jenkins objected during trial to the admission of the jail calls on the ground that the State failed to lay a sufficient foundation, the same weakness he asserts on appeal, he preserved this issue for our review. See K.S.A. 60-404.

On review of

"a decision to admit evidence, appellate courts consider first whether the evidence is relevant. . . . If the court finds the evidence is relevant, the second step requires the court to apply the statutory rules governing the admission or exclusion of evidence. [Citations omitted.]" State v. Phillips, 295 Kan. 929, 947, 287 P.3d 245 (2012).

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Here, Jenkins does not contest the relevance of the calls, nor does he assert that the recordings contain inadmissible hearsay. Cf. State v. Williams, 306 Kan. 175, 392 P.3d 1267 (2017) (holding informant's recorded statements were testimonial hearsay). He challenges only the district judge's application of the rules for their admission, specifically whether the State laid an adequate foundation.

"The question of whether evidentiary foundation requirements have been met is left largely to the discretion of the district court. Under an abuse of discretion standard, an appellate court will not disturb a district court's decision unless no reasonable person would have taken the same view. [Citations omitted.]" State v. Ernesti, 291 Kan. 54, 64-65, 239 P.3d 40 (2010).

A district judge's mistake of fact or law also qualifies as an abuse of discretion. State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015). This court reviews the factual underpinnings of a district judge's legal ruling for substantial competent evidence. City of Overland Park v. Cunningham, 253 Kan. 765, Syl. ¶ 6, 861 P.2d 1316 (1993). "Substantial competent evidence is 'evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.'" State v. Brown, 300 Kan. 542, 546, 331 P.3d 781 (2014) (quoting In re D.D.M., 291 Kan. 883, 893, 249 P.3d 5 [2011]). Jenkins argues that the State insufficiently established that he was the male speaker on the recorded calls. In his view, the State cannot rely entirely on the use of his PIN to establish his identity. The State argues that it sufficiently established Jenkins' identity through Biltoft's testimony that the PIN was unique and assigned only to Jenkins. The State further argues that any doubt Jenkins sought to sow about use of his PIN by another inmate goes to the weight of the evidence, not to its admissibility. The State also points out that it furnished other evidence of identity beyond Jenkins' PIN. And it suggests that voice identification requirements set out in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), have become dated while the state of the law surrounding audio recordings has changed. In Williams, this court identified seven factors from the then- current American Jurisprudence treatise that should be used to establish a foundation for an audio recording.

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"'The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.' 29 Am. Jur. 2d, Evidence § 436, pp. 494- 95." 235 Kan. at 491.

The Williams court noted that "[w]hile Kansas cases vary in terms of what has been found to be sufficient foundation for the admission of recordings into evidence, all cases agree the matter is within the discretion of the trial court." 235 Kan. at 491. Under this standard, admission of a re-recorded tape of a 911 call was proper because evidence demonstrated that the cassette recorder operators were competent, that the operators listened to the recording as it occurred and testified to the re-recording's accuracy, that the victim identified her and the defendant's voices on the tape, and that the State established an appropriate chain of custody. 235 Kan. at 491-93. It appears the seven factors this court found in the American Jurisprudence treatise originated in a 1955 Georgia Court of Ap- peals decision, Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-12, 88 S.E.2d 167 (1955). From there, they spread to other state and federal courts. See United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y. 1958), rev'd on other grounds 271 F.2d 669 (2d Cir. 1959); State v. Williams, 49 Wash. 2d 354, 360, 301 P. 2d 769 (1956). And secondary sources such as the 1958 American Law Reports and American Jurisprudence treatise started listing the seven factors as well. Annot., 58 A.L.R.2d 1024, 1027-28. Since Williams, 235 Kan. 485, was decided in 1984, this court and our Court of Appeals have routinely cited it for the standard for admission of audio recordings. See State v. Snow, 282 Kan. 323, 329-30, 144 P.3d 729 (2006); State v. Milton, No. 99,584, 2010 WL 5139871, at *5 (Kan. App. 2010) (unpublished opinion). However, several panels of our Court of Appeals have expressed concern that the Williams requirements "may be obsolete" and

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State v. Jenkins have "been abandoned in other jurisdictions in better-reasoned cases that favor a rule holding that recordings, like photographs, are admissible when a witness testifies they are reliable representations of the subject sound." State v. Vogt, No. 106,487, 2013 WL 310343, at *4 (Kan. App. 2013) (unpublished opinion); see also State v. Kemp, 30 Kan. App. 2d 657, 662-63, 46 P.3d 31 (2002); State v. Miles, No. 110,511, 2014 WL 7565767, at *7 (Kan. App. 2014) (unpublished opinion). Jurisdictions that have abandoned the seven requirements include Kentucky, Michigan, Mississippi, and Texas. See Campbell v. Commonwealth, 788 S.W.2d 260 (Ky. 1990); People v. Berkey, 437 Mich. 40, 51-52; 467 N.W.2d 6 (1991); Stromas v. State, 618 So. 2d 116, 118 (Miss. 1993); Angleton v. State, 971 S.W.2d 65, 68-69 (Tex. Crim. App. 1998). Still other jurisdictions never adopted the seven-factor test in the first place, or they treated them as mere guidelines. See State v. Weatherly, 519 N.W.2d 824, 826 (Iowa Ct. App. 1994) ("Iowa has not adopted the 'particularized technical' test . . . . 'What has been required is that the foundation for the evidence clearly establish that it is accurate and trustworthy.'"); State v. Jackson, 113 Wash. App. 762, 767-68, 54 P.3d 739 (2002) (recognizing adapted version of seven factors as one of several acceptable methods to au- thenticate audio recording); People v. Gonzales, No. 16CA0750, 2019 WL 1087008, at *3 (Colo. App. 2019) (unpublished opinion) (rejecting use of one set of factors for authenticating sound recordings; holding district judges have "broad discretion to consider a variety of factors and circumstances" for authentication). The Tenth Circuit has recognized that the factors "may assist judges when ruling on foundation questions, [but] they are not prerequi- sites to the admission of sound recordings." United States v. Green, 175 F.3d 822, 830 n.4 (10th Cir. 1999). The Third Circuit wrote recently that it uses the factors but "did not intend to establish 'a uniform standard equally applicable to all cases.'" United States v. Credico, 718 Fed. Appx. 116, 119 (3d Cir. 2017) (unpublished opinion). And the Seventh Circuit has rejected "formal- istic" use of factors in favor of "the more inclusive approach of Federal Rule of Evidence 901(a)." United States v. Westmoreland, 312 F.3d 302, 310 (7th Cir. 2002).

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Even Williams' cited source for the factors, American Juris- prudence, has moved away from the seven-factor test. The current Volume 23 of American Jurisprudence Proof of Facts 3d 315 states at Section 22, p. 373: "[S]trict adherence to the 'seven- pronged' predicate has been significantly relaxed, and today a minimally sufficient foundation can be laid in a variety of ways that require far less than the satisfaction of all seven prongs." It posits:

"Perhaps the best way to establish a minimal sufficient foundation is through testimony as to the recording's accuracy by a nonparticipant who overheard the conversation as it occurred, either through physical presence or electronic monitoring. Other methods that courts have found to satisfy minimal sufficient foundation requirements include a participant's testimony that the recording is accurate, an independent determination by the trial judge that the recording is accurate, evidence as to chain of custody, or testimony of a participant in the conversation together with proof by an expert witness." 23 Am. Jur. 3d Proof of Facts 315 § 35, pp. 401-02.

In spite of these developments in the law, some jurisdictions continue to use the seven factors listed in Williams. These jurisdictions include Louisiana, Minnesota, Missouri, and Montana. See State v. Jones, 46 So. 3d 756, 762 (La. Ct. App. 2010); Turn- age v. State, 708 N.W.2d 535, 542 (Minn. 2006); State v. Patrick, 566 S.W.3d 245, 253 (Mo. Ct. App. 2019); McCormick v. Brevig, 322 Mont. 112, 132, 96 P.3d 697 (2004) (this civil case excludes the seventh "voluntariness" factor but the voluntariness factor is included in previous criminal cases, see, e.g., City of Missoula v. Forest, 236 Mont. 129, 134, 769 P.2d 699 [1989]). Other jurisdictions use the seven factors or similar lists of factors only in "silent witness" situations. Alabama uses seven requirements very similar to those from Williams when "there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question." Bohannon v. State, 222 So.3d 457, 494 (Ala. Crim. App. 2015). The Alabama Court of Criminal Appeals has held that a recorded jail call was properly authenticated when

"the prosecutor laid the proper predicate for the admissibility of [defendant Bran- don D.] Mitchell's November 8, 2006, telephone conversation from the Jefferson County jail. Deputy Carl Carpenter of the Jefferson County Sheriff's Department

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State v. Jenkins testified about the machine used to digitally record inmates' telephone calls from the jail and how the conversations are stored on an inmate-telephone server. Car- penter's testimony established that he was competent to operate the recording system. Additionally, Carpenter described how the system worked, described how he downloaded the conversation from the inmate-telephone server to a com- pact disc ('CD'), and stated that the CD accurately represented the telephone conversation that was stored on the server. Carpenter further testified that there were no changes to the recording. The testimony presented at trial further established the telephone call in question was traced to Mitchell's assigned pin number, Mitchell referred to himself as 'Brandon' during the conversation, and Mitchell spoke of details known only by Mitchell. Finally, Carpenter testified that before placing the telephone call, Mitchell was adequately warned that his conversation might be recorded and that Mitchell's statements were voluntary and not part of a custodial statement to law-enforcement officers." Mitchell v. State, 84 So. 3d 968, 1008 (Ala. Crim. App. 2010).

In a "silent witness" situation in Illinois, "a recording may be admitted without the testimony of a witness with personal knowledge of what the recording portrays[,] as long as there is sufficient proof of the reliability of the process that produced the recording." People v. Sangster, 8 N.E.3d 1116, 1127 (Ill. App. Ct. 2014). "[A] sound recording, which is otherwise competent, material, and relevant, is admissible into evidence if a proper foundation is laid establishing the authenticity and reliability of the recording." Sangster, 8 N.E.3d at 1127. Five evidentiary factors are used to establish authenticity in such circumstances: "(1) capability of the device for recording; (2) competency of the operator; (3) proper operation of the device; (4) preservation of the recording with no changes, additions, or deletions; and (5) identification of the speakers." Peo- ple v. Smith, 321 Ill. App. 3d 669, 675, 749 N.E.2d 986 (2001); People v. Viramontes, 69 N.E.3d 446, 460 (Ill. App. Ct. 2017). This case qualifies as even more silent than the "silent witness" cases before the Alabama and Illinois courts. In Sangster and Mitch- ell, the speakers in the audio recordings were identified by name during the calls. In this case, the male speaker on the calls identified himself only as "Ricky." The State sponsored no evidence to show that Jenkins went by that name, and Jenkins sponsored no evidence to show that another person named Ricky had knowledge of Jenkins' PIN. That said, the most recent edition of McCormick on Evidence also embraces the possibility of admission of audio recordings in a "silent witness" situation, with no emphasis on the seven-factor

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State v. Jenkins test this court used in Williams. "If no witness testifies that he overheard the crucial information being recorded, then the record must be authenticated by the 'silent witness' process; that is, testimony concerning the accuracy of the recording system and the absence of tampering, often through its chain of custody." 2 McCormick on Evidence § 216, p. 44 (7th ed. 2013). Our review of these diverse authorities counsels an overhaul of the Williams seven-factor foundation test for admission of audio recordings. The question then becomes how to formulate its replacement. Fortunately, we are guided in this endeavor by our modern embrace of a text-first approach to statutory interpretation and construction. See Redd v. Kansas Truck Center, 291 Kan. 176, 188, 239 P.3d 66 (2010) (when interpreting statutes, courts first look to language of statutes). And this approach is reinforced by our observation that several of our sister states have rejected me- chanical application of the seven factors because of jurisdiction- specific evidentiary statutes or rules. See, e.g., Gonzales, 2019 WL 1087008, at *3 (Colorado); Berkey, 437 Mich. at 51-52. Under Kansas' Rules of Evidence, codified in K.S.A. 60-401 et seq., audio recordings such as those at issue here qualify as "writings." See K.S.A. 60-401(m) ("'Writing' means . . . every other means of recording upon any tangible thing any form or communication or representation, including . . . sounds."); State v. Dale, 293 Kan. 660, 662-63, 267 P.3d 743 (2011) (video on digital versatile disc constitutes writing; "it is a means of recording upon a tangible thing . . . a combination of moving pictures and sounds"). "Authentication of a writing is required before it may be received in evidence," and it may be established by "evidence sufficient to sustain a finding of its authenticity or by any other means provided by law." K.S.A. 60-464. In State v. Robinson, 303 Kan. 11, 225, 363 P.3d 875 (2015), disapproved of on other grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017), this court interpreted K.S.A. 60-464 and held that its "authentication requirement is 'satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.'" 303 Kan. at 225. The burden of au-

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State v. Jenkins thentication is "minimal" or "slight," and there is "no precise formula" for district judges to determine authenticity. 303 Kan. at 225. "[I]ndirect or circumstantial evidence" can suffice. 303 Kan. at 225. A proponent need only proffer evidence upon which a reasonable juror could conclude that the message is what the proponent represents it to be. 303 Kan. at 226. After that, "discrepancies and other conflicting evidence go to the weight, not the admissibility, of the writing." 303 Kan. at 226. Further, in the much earlier case of State v. Milum, 202 Kan. 196, 198, 447 P.2d 801 (1968), this court held that a letter can be authenticated by its contents when "the contents themselves reveal knowledge peculiarly referable to a certain person or the contents are of such nature that the letter could not have passed between persons other than the purported writer and the person to whom it was delivered." Likewise, the content of an audio recording can contribute to its authentication. In this case, even when we are careful to focus only on the question of the identity of the caller rather than the identity of the guilty party, the State proffered plenty of evidence upon which a reasonable juror could conclude that Jenkins made the recorded calls. The use of Jenkins' unique PIN to make the calls certainly is strong circumstantial evidence that Jenkins was the caller. And the State had much more. The calls' content included the male caller's discussion of being in the hospital, and previous testimony had established that Jenkins was taken to the hospital after the pickup crash. The male caller also discussed the crash itself, and prior testimony had established that Jenkins was the only person in the pickup at the time of the crash. And, finally, as the district judge pointed out, the timing of the calls the day after the crash made Jenkins more likely to have made them. On this record, under current Kansas rules of evidence and the cases interpreting them, we hold that the district judge did not abuse his discretion by admitting the recorded calls as evidence in Jenkins' trial.

K.S.A. 2015 Supp. 8-1568(b)(1)(E) Vagueness

Jenkins argues that this court must reverse his felony fleeing and eluding and felony-murder convictions because the term

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"moving violations" used in the Kansas felony fleeing and eluding statute is unconstitutionally vague. The statute reads:

"Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle when given visual or audible signal to bring the vehicle to a stop, and who: "(1) Commits any of the following during a police pursuit: . . . (E) commits five or more moving violations." K.S.A. 2015 Supp. 8-1568(b)(1)(E).

Oddly, the words necessary to complete the sentence begun in this passage are found in K.S.A. 2015 Supp. 8-1568(b)(2): ". . . shall be guilty as provided in subsection (c)(2)." Subsection (c)(2) states that violation of subsection (b) is a "severity level 9, person felony." This drafting and/or printing anomaly, although worth noting (and correcting), ultimately is irrelevant to whether the phrase challenged by Jenkins, i.e., "moving violations," is unconstitutionally vague. Jenkins concedes that he did not raise a vagueness issue before the district court. And he appreciates that this court generally does not review constitutional claims raised for the first time on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). He argues that this is a case in which, in our discretion, we should apply an exception. See State v. Robinson, 306 Kan. 1012, 1025, 399 P.3d 194 (2017). Jenkins contends this court should consider his vagueness argument because "consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights." State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). We agree to apply the exception and move to the merits of his argument. "A claim that a statute is void for vagueness necessarily requires a court to interpret the language of the statute in question to determine whether it gives adequate warning as to the proscribed conduct." State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). Questions of statutory interpretation are subject to unlimited review by this court. State v. Looney, 299 Kan. 903, Syl. ¶ 2, 327 P.3d 425 (2014).

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State v. Jenkins

Due process requires criminal statutes to "convey[] a sufficiently definite warning as to the conduct proscribed when meas- ured by common understanding and practice." State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). "[T]he determinative question" when statutes are challenged as void for vagueness is "'whether a person of ordinary intelligence understands what conduct is prohibited by' the statutory language at issue." Richardson, 289 Kan. at 125 (quoting State v. Adams, 254 Kan. 436, 445, 866 P.2d 1017 [1994]). We employ a two-pronged inquiry, asking: "(1) whether the statute gives fair warning to those potentially subject to it; and (2) whether it adequately guards against arbitrary and unreasonable enforcement." State v. Gonzalez, 307 Kan. 575, 580, 412 P.3d 968 (2018). "[S]tatutes are not 'automatically invalidated as vague simply because difficulty is found in determining whether certain mar- ginal offenses fall within their language.'" Hearn v. City of Over- land Park, 244 Kan. 638, 641, 772 P.2d 758 (1989) (quoting Par- ker v. Levy, 417 U.S. 733, 757, 94 S. Ct. 2547, 41 L. Ed. 2d 439 [1974]). This court generally presumes statutes are constitutional and resolves all doubts in favor of a statute's validity. Gonzalez, 307 Kan. at 579. Jenkins, as the party challenging the statute as unconstitutional, bears the burden to overcome the presumption of constitutionality. Gonzalez, 307 Kan. at 579. Jenkins primarily relies on State v. Richardson, 290 Kan. 176, 180, 244 P.3d 553 (2010), to support his vagueness challenge. In Richardson, defendant Dorian Richardson challenged his conviction for felony fleeing and eluding. At trial, the State had produced evidence that Richardson "[ran] through five stop signs and a red light, turn[ed] without a turn signal five times, [drove] in the wrong lane twice, and [drove] as much as 40 miles per hour over the speed limit" while police pursued him. 290 Kan. at 177. The district judge instructed the jury only about the "five or more moving violations" option within a means for fleeing and eluding. 290 Kan. at 179. The district judge did not define "moving violation" for the jury. Because Richardson had not requested such an instruction or objected to the lack of it in district court, an appellate clear error

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State v. Jenkins standard of review applied. 290 Kan. at 178. This court concluded that such error existed in Richardson's case, because the fleeing and eluding statute did not define "moving violations" and "[t]he definition of moving violation [was] not a simple matter of common knowledge among jurors." 290 Kan. at 181. It is obvious that Richardson's holding is not directly helpful to Jenkins, because it concerned an instructional error rather than a vagueness challenge. Jenkins does not and cannot assert instructional error here, because his trial judge supplied the jury with specific definitions of the eight different moving violations relied on by the prosecution. Instead, Jenkins wishes to put Richardson's observation that the definition of moving violation is "not intuitive" and "not a simple matter of common knowledge among jurors," 290 Kan. at 180- 81, to work in the service of his arguments that K.S.A. 2015 Supp. 8-1568(b)(1)(E) does not give "fair warning to those potentially subject to it" and does not "adequately guard[] against arbitrary and unreasonable enforcement." Gonzalez, 307 Kan. at 580. He places particular emphasis on the Richardson decision's language about where jurors might have looked for a definition of "moving violations" when one was not included in their instructions:

"K.S.A. 8-249(b), relating to records to be maintained by the Kansas De- partment of Revenue, Division of Motor Vehicles, requires the division to maintain records of individual licensees' 'convictions of moving violations as defined by rules and regulations adopted by the secretary of revenue.' "Certain statutes explicitly refer to the rules and regulations adopted pursuant to K.S.A. 8-249. See K.S.A. 8-2004(c), relating to traffic-control devices on state highways; K.S.A. 8-2118(e), relating to a uniform fine schedule for traffic infractions; and K.S.A. 28-172a(b), relating to docket fees. "Other statutes, including the subject of the present appeal, K.S.A. 8-1568, refer to moving traffic violations without reference to other rules and regulations. See K.S.A. 8-237(a), relating to restricted licenses; K.S.A. 8-255(a), relating to restricting or removing driving privileges; K.S.A. 8-296(g), relating to farm per- mits; and K.S.A. 40-277(c)(7), relating to automobile liability insurance policies. "Certain traffic violations are excluded by statute from application to other statutory provisions relating to moving violations. K.S.A. 8-1345(a) specifically excludes certain violations relating to child-passenger safety from being considered moving traffic violations as they relate to K.S.A. 8-255(a). K.S.A. 8-1560c, relating to violating maximum speed limits, likewise specifically limits certain speeding violations from being treated as moving traffic violations for purposes

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State v. Jenkins of K.S.A. 40-277(c). And K.S.A. 8-1742b excludes violations relating to restrictions on wide-base single tires from the definition of moving traffic violations under K.S.A. 8-255(a). "The administrative regulations are also not in agreement as to what constitutes a moving violation. K.A.R. 82-4-1(t), relating to the Kansas Corporation Commission, defines a moving violation with respect to motor carriers as 'the commission or omission of an act by a person operating a motor vehicle that could result in injury or property damage and that is also a violation of a statute, ordinance, or regulation of this or any other state.' That definition is more open- ended than the definition of moving violation contained in K.A.R. 92-52-9, promulgated by the Kansas Department of Revenue, Motor Vehicle Drivers' Li- censes Division pursuant to K.S.A. 8-249, which enumerates multiple Kansas statutory offenses, including violations of corresponding municipal ordinances or county resolutions in this state or similar statutes, ordinances, or regulations in other states, that constitute moving violations." 290 Kan. at 180-81.

It is true that K.S.A. 2015 Supp. 8-1568(b)(1)(E) does not explicitly define "moving violations" or refer to other statutes or regulations that do, but this does not mean that such provisions do not exist. They do. The Richardson decision said as much. And, in a paragraph immediately following the quoted observations Jenkins emphasizes, Richardson expressly disclaimed an intention to resolve what constituted a moving violation, as that question was not before it. It noted only that "statutes and regulations present a complex statement of what is considered a moving violation for particular purposes." 290 Kan. at 181. K.S.A. 2015 Supp. 8-234b(d), part of the Motor Vehicle Driv- ers' License Act, states that the "secretary of revenue shall adopt rules and regulations establishing qualifications for the safe operation of . . . vehicles." K.S.A. 2015 Supp. 8-249(b) requires the Division of Motor Vehicles (DMV) to "maintain convenient records or make suitable notations in order that an individual record of each licensee showing the convictions of moving violations, as defined by rules and regulations adopted by the secretary of revenue, of such licensee . . . shall be readily ascertainable." (Empha- sis added.) Together these two statutes unambiguously state legislative intent for the Secretary of Revenue to promulgate regulations defining "moving violations" and for the DMV to keep track of individual driving records. The Secretary of Revenue did exactly as instructed by the Legislature in K.A.R. 92-52-9. K.A.R. 92-52-9 refers to a list of Kansas statutes and states unequivocally that violations of these

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State v. Jenkins statutes constitute moving violations. K.A.R. 92-52-9(a) also classifies violation of "any other Kansas Statute that specifically provides that a conviction for violation of such statute is a moving violation" as a Kansas moving violation. And it designates violation of any "similar municipal ordinance or county resolution in this state" or "any similar statute, municipal ordinance, or regulation in another state" as a Kansas moving violation as well. K.A.R. 92-52-9(a)(1)(GG)-(a)(3). Each moving violation in the detailed jury instructions given at Jenkins' trial was based on a Kansas statute specifically listed in K.A.R. 92-52-9(a). Thus, although the statutory and regulatory scheme defining "moving violation" can be described as "complex," to use Rich- ardson's word, because it may require reference to more than one legal provision, it is far from unconstitutionally vague. K.S.A. 2015 Supp. 8-1568(b)(1)(E), when understood in context "provide[s] a person of ordinary intelligence with fair notice" of what conduct is forbidden. State v. Williams, 308 Kan. 1439, 1460, 430 P.3d 448 (2018); Grayned v. City of Rockford, 408 U.S. 104, 108- 09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The conduct underlying each of the moving violations used by the jury to convict Jenkins of fleeing and eluding and felony murder was clearly prohibited by Kansas law: driving with a suspended, canceled, or revoked license (K.S.A. 2015 Supp. 8-262); failure to stop at a stop sign (K.S.A. 8-1528[b]); failure to stop at a red light (K.S.A. 2015 Supp. 8-1508[c]); failure to maintain a single lane (K.S.A. 2015 Supp. 8-1522[a]); driving in the left lane while approaching a hill, curve, intersection, or railroad grade crossing (K.S.A. 8- 1519); making an unsafe turn or lane change (K.S.A. 8-1548); turning into the incorrect lane (K.S.A. 8-1545); and failing to signal a turn or lane change (K.S.A. 8-1548). Jenkins cannot meet his burden under the first prong of his vagueness challenge. Jenkins' claim under the second vagueness prong that K.S.A. 8-1568(b)(1)(E)'s use of "moving violations" is "not precise enough to adequately protect [him] against arbitrary and discrim- inatory use of the law" also fails. Just as a person of ordinary intelligence can understand what the phrase "moving violations" means, a law enforcement officer can understand the actions crim-

VOL. 311 SUPREME COURT OF KANSAS 57

State v. Jenkins inalized. The plain language of the defining statutory and regulatory provisions is clear. And Jenkins at least exaggerates when he asserts that "[t]he State used the words 'moving violation' to describe any violation of the traffic laws." During the portion of the State's closing argument Jenkins cites to support this assertion, the prosecutor specifically identified each moving violation it alleged. The district judge's specific instructions reinforced the prosecutor's description of Jenkins' offenses. Finally, as part of his vagueness challenge, Jenkins argues that this court should consider and apply the rule of lenity. He points specifically to K.A.R. 82-4-1(aa), which, he says, limited "moving violations" to those that could result in injury or property damage and were violations of law. The rule of lenity requires this court to adopt the interpretation of a criminal statute most favorable to the defendant when presented with "'two reasonable and sensible interpretations'" of that statute. State v. Collins, 303 Kan. 472, 476, 362 P.3d 1098 (2015). There are several flaws in Jenkins' reliance on the rule of lenity. First, K.A.R. 82-4-1 (2017 Supp.) is a regulation of the Kan- sas Corporation Commission rather than the Department of Reve- nue. Second, the Corporation Commission provision defining "moving violations" at the time of Jenkins' crimes was subsection (z) rather than (aa). See K.A.R. 82-4-1 (2017 Supp.) Third, although the Richardson decision mentioned the difference between the Department of Revenue's regulatory definition of "moving violations" and the Corporation Commission's regulatory definition of "moving violations," it also noted that the Corporation Com- mission's regulatory power extended only to motor carriers. See K.S.A. 66-1,108a. A "motor carrier" was defined at the time of Jenkins' crimes to mean

"any person operating as a for hire motor carrier or a private motor carrier, and any of that person's agents, officers, representatives, as well as employees responsible for hiring, supervising, training, assigning or dispatching of drivers and employees concerned with the installation, inspection and maintenance of motor vehicle equipment or accessories or both." K.S.A. 2015 Supp. 66-1,108(f).

Jenkins was not a motor carrier under this definition. We have already said that the clear statutes and regulations governing a driver

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State v. Jenkins like him were not ambiguous. They were not rendered ambiguous because other statues and regulations governing another type of driver say something else. There is nothing in this case to which the rule of lenity might apply.

CONCLUSION

Jenkins is not entitled to reversal of his convictions because of error in the admission of jail telephone call recordings or because the Kansas fleeing and eluding statute is unconstitutionally vague. We affirm the judgment of the district court.

1 BARBARA KAY HUFF, District Judge, assigned.

1REPORTER'S NOTE: District Judge Huff was appointed to hear case No. 118,120 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Consti- tution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

²REPORTER'S NOTE: Retired Chief Justice Lawton R. Nuss was assigned to participate in the final decision of No. 118,120 under the authority vested in the Supreme Court by K.S.A. 20-2616.

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State v. Patterson

No. 118,180

STATE OF KANSAS, Appellee, v. LONDRO EMANUEL PATTERSON III, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Felony-Murder Statute—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.

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

3. TRIAL—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.

4. TRIAL—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."

5. CRIMINAL LAW—Sentencing—Disproportionality Challenge Based on Section 9 of Kansas Constitution 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.

6. SAME—Sentencing—Hard 25 Life Sentence Not Categorically Dispropor- tionate to This Class of Offenders. A hard 25 life sentence is not categorically disproportionate when applied to young adults convicted of felony murder.

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opin- ion filed January 10, 2020. Affirmed.

Peter T. Maharry, of Kansas Appellate Defender Office, argued the cause, and Carol Longenecker Schmidt, of the same office, was on the brief for appellant.

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State v. Patterson

Jacob M. Gontesky, assistant district attorney, argued the cause, and Ste- phen M. Howe, 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.: Londro Patterson appeals from his convictions and sentence arising from an armed robbery in which a victim was killed by an accomplice. He argues: (1) his felony-murder conviction violates due process because a jury was not required to determine he possessed a particular criminal mental state; (2) the district court's instructions to the jury and a prosecutor's voir dire comments improperly prevented the jury from exercising its nullification power; (3) his hard 25 life sentence for felony murder is disproportionate to his crime in violation of § 9 of the Kansas Con- stitution Bill of Rights and the Eighth Amendment to the United States Constitution; and (4) his Sixth Amendment rights under Ap- prendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), were violated when prior convictions were used to elevate his sentence without being proved to a jury beyond a reasonable doubt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Patterson and three accomplices—De'Anthony Wiley, Ha- keem Malik, and Nicquan Midgyett—tried to rob a Shawnee gun store, She's A Pistol, at gunpoint. Jon Bieker and his wife, Re- becca, were the store's proprietors. Jon was killed. The incident began when Wiley entered the store dressed as a female and feigned interest in some merchandise. Rebecca at- tended to him. Wiley pulled out a phone from his pocket and began speaking into it. Patterson, Malik, and Midgyett then entered the store. Wiley and Patterson pointed weapons at Rebecca. Mid- gyett punched Rebecca and knocked her unconscious. Jon emerged from the store's back room with a gun. The robbers fled as shots were exchanged. Wiley fatally shot Jon. Wiley was shot and found inside the store. Midgyett was shot and found with Malik at a nearby house. Patterson sustained two gunshot wounds. Police found him lying in the grass near the store. Jon fired at least one bullet that hit Pat- terson. The State charged Patterson with felony murder, attempted

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State v. Patterson aggravated robbery, conspiracy to commit aggravated robbery, and aggravated battery. During trial, Patterson's counsel admitted Patterson conspired and attempted to rob She's A Pistol but argued he should not be liable for Jon's death because his participation ended when he left the store. The jury convicted Patterson of felony murder, conspiracy to commit robbery, attempted aggravated robbery, and a lesser form of aggravated battery. At a separate sentencing proceeding, the jury declined to find two aggravating circumstances alleged by the State: Patterson was not amenable to probation and he presented a danger to the community. The only additional evidence introduced at this sentencing proceeding was testimony from an administrator in the office that supervised Patterson's Missouri probation and Patterson's mother. The probation administrator testified Patterson was on probation for a weapons violation, failed to report several times, and traveled outside the state without permission. His mother testified Patterson was 19 when he committed the crimes at She's A Pistol and had outgrown his clothes while in jail awaiting trial. The district court sentenced Patterson to life imprisonment with 25 years before parole eligibility for the murder conviction and consecutive 47-, 34-, and 13-month prison terms for the remaining three convictions. Patterson timely appealed. Jurisdiction is proper. K.S.A. 2018 Supp. 22-3601(b)(3) (Supreme Court has jurisdiction over life imprisonment cases); K.S.A. 2018 Supp. 22-3601(b)(4) (Supreme Court has jurisdiction over off-grid crimes); K.S.A. 2018 Supp. 21-5402(b) (felony murder is an off-grid crime).

THE FELONY-MURDER CONVICTION

Patterson argues for the first time on appeal that his due process rights were violated when he was convicted of first-degree murder under the felony-murder statute. He claims this occurs because felony murder does not require proof beyond a reasonable doubt that the defendant "intentionally, knowingly, or recklessly" caused the victim's death. See K.S.A. 2018 Supp. 21-5202(a). The essence of Patterson's claim is that Kansas law requires an intent- to-kill element for homicide that the jury is not informed about in

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State v. Patterson the felony-murder context because, he alleges, that intent is con- clusively presumed based only on the jury's finding the defendant was participating in an inherently dangerous felony.

Preservation

Patterson acknowledges this issue is advanced for the first time on appeal, which raises a preservation concern. Generally, the court declines to address constitutional issues for the first time on appeal. State v. Thach, 305 Kan. 72, 81, 378 P.3d 522 (2016). But an appellate court may do so if the party attempting to raise the issue demonstrates at least one of three recognized exceptions:

"'(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. An- derson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012)." State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019).

See Thach, 305 Kan. at 81 (party asserting issue must explain why exception applies). Patterson invokes the first exception. And the State does not object. But the State's failure to object does not control. Deciding whether due process has been afforded is a question of law over which a court has unlimited review. Stewart v. State, 310 Kan. 39, 43, 444 P.3d 955 (2019). In this instance, we have decided to proceed to the merits.

Discussion

Due process demands the State prove every element of the charged crime. State v. Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017) (citing In re Winship, 397 U.S. 358, 361-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). The United States Supreme Court has held that when intent is an element of an offense,

"the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. . . . A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredi- ent of the offense. . . . [T]his presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which

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State v. Patterson extends to every element of the crime." Morissette v. United States, 342 U.S. 246, 274-75, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

And the Court has held that in a prosecution for deliberate homicide requiring proof the defendant "purposely or knowingly" caused the victim's death, it was improper to instruct the jury that "'the law presumes that a person intends the ordinary consequences of his voluntary acts.'" Sandstrom v. Montana, 442 U.S. 510, 512, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). The Court reasoned that,

"Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and 'ordinary consequences' of defendant's action), [the jury] could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove 'beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged' and defendant was deprived of his constitutional rights . . . . [Citation omitted.]" 442 U.S. at 523.

Patterson claims the felony-murder statute operates in this prohibited manner. In Kansas, "[m]urder in the first degree is the killing of a human being committed: (1) Intentionally, and with premeditation; or (2) in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2018 Supp. 21-5402(a). Our caselaw has long recognized that,

"[i]n felony-murder cases, the elements of malice, deliberation, and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction of felony murder, all that is required is to prove that a felony inherently dangerous to human life was being committed and that the homicide which followed was a direct result of the commission of that felony." State v. Hobbs, 248 Kan. 342, 345-46, 807 P.2d 120 (1991), overruled on other grounds by State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011).

See also State v. Hoang, 243 Kan. 40, 41-42, 755 P.2d 7 (1988) (same). The court has explained that "[f]elony murder . . . transfers the intent to commit an inherently dangerous felony to an unintended death that occurs during the commission of the underlying felony. 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).

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State v. Patterson

Patterson points out that under Kansas law, "[e]xcept as otherwise provided, a culpable mental state is an essential element of every crime defined by [the criminal] code. A culpable mental state may be established by proof that the conduct of the accused person was committed 'intentionally,' 'knowingly' or 'recklessly.'" K.S.A. 2018 Supp. 21-5202(a). And "[i]f the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." K.S.A. 2018 Supp. 21-5202(d). Patter- son contends that by "transferring the intent to commit the underlying felony to prove the intent required to commit felony murder, Kansas formally retains a mens rea element for felony murder." He adds that withholding this element from the jury amounts to a violation of his rights to due process and to a jury trial. Kansas law has contained a provision much like K.S.A. 2018 Supp. 21-5202 since 1970. Its predecessor, K.S.A. 21-3201 (Ensley), stated:

"Except as provided . . . 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 wonton manner."

The 1968 Judicial Council note on the statute explains,

"At common law, it was the general rule that acts are criminal only when they are accompanied by a blameworthy state of mind—specific intent, knowledge, willfulness, culpable negligence, general mens rea, etc. These concepts are vague and often misunderstood. Kansas decisions establish three categories of blameworthy conduct: to wit, willfulness, wantonness and negligence. The section seeks to codify and clarify the Kansas law." K.S.A. 21-3201 (Ensley).

Malice aforethought against the deceased was not an element of felony murder at common law. Seba, 305 Kan. at 195. And Kansas caselaw predating the adoption of K.S.A. 2018 Supp. 21- 5202 has consistently construed the felony-murder statute to mean that the evidence of the underlying felony will stand in place of the malice, intent, premeditation, and deliberation otherwise required to commit first-degree murder. See, e.g., State v. Wesson, 247 Kan. 639, 643, 802 P.2d 574 (1990); State v. Bradford, 219 Kan. 336, 343, 548 P.2d 812 (1976); see also State v. Thomas, 302

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State v. Patterson

Kan. 440, 446, 353 P.3d 1134 (2015) (Explaining in discussing the predecessor to the current first-degree murder statute that "[i]n interpreting the plain language of K.S.A. 21-3401, we have long held that the 'statute merely provides alternative methods of proving the deliberation and premeditation required for a conviction of first-degree murder.'"). Cast in the terminology of the first-degree murder formulation in K.S.A. 2018 Supp. 21-5402, the underlying felony required for a conviction under subsection (a)(2) suffices to prove first-degree murder. Proof of the intent and premeditation required under subsection (a)(1) is not required under subsection (a)(2). But this statutory formulation does not carry with it a presumption that offends due process or jury trial guarantees. Both state and federal courts have rejected arguments that the felony- murder rule presumes the existence of an intent to kill, or any other intent necessary for the crime of murder, in violation of the Due Process Clause. State v. Wanrow, 91 Wash. 2d 301, 311-12, 588 P.2d 1320 (1978). One court has observed that "the courts which have addressed this issue universally held" that felony-murder statutes are constitutional notwithstanding the "'presumption'" arising from the fact that "'malicious and premeditated intent . . . [is] by implication of law transferred from'" an underlying felony to the homicide. People v. Benson, 125 Misc. 2d 843, 847, 480 N.Y.S.2d 811 (N.Y. Sup. Ct. 1984). "The rationale of these decisions is that since intent is not an element of the crime in reality there is no presumption of intent. Other courts hold their statute constitutional because the presumption is a rule of law and not a true presumption." 125 Misc. 2d at 848.

In Wanrow, the Washington Supreme Court reasoned that

"intent to kill is not an element of [the crime.] The intent necessary to prove the felony-murder is the intent necessary to prove the underlying felony. That intent must be proved by the state as a necessary element of the crime, and the question whether it was present is presented to the jury." Wanrow, 91 Wash. 2d at 311.

In State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652 (1976), the North Carolina Supreme Court concluded the felony-murder rule

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State v. Patterson

"is a rule of law and not a presumption. If [the statute] is compared with murder in the first degree based on premeditation and deliberation, it might be said that the practical effect of [the statute] is that premeditation and deliberation are presumed when a murder is committed in the perpetration of a felony . . . . However, [the statute] actually involves no presumption at all. Under [the statute] premeditation and deliberation are not elements of the crime of felony-murder. . . . The only requirement for purposes of [the statute] is that the felony involved be one of the specified felonies or an unspecified felony within the purview of [the statute]."

And in State v. Burkhart, 325 Mont. 27, 103 P.3d 1037 (2004), the Montana Supreme Court distinguished the felony-murder rule's transfer of felonious intent from the presumptions disapproved by the United States Supreme Court. The court first noted that under the rule, the defendant's "purpose and knowledge to commit felony-murder was presumed when he assaulted [the victim] . . . , causing [the victim's] death." 325 Mont. at 40-41. And because a felony-murder defendant's conduct creates a dangerous circumstance, "'the intent to commit the felony supplies the intent for all the consequences, including homicide, arising therefrom.'" 325 Mont. at 41 (quoting State v. Nichols, 225 Mont. 438, 449, 734 P.2d 170 [1987]). The court explained,

"[E]ven if the [felony-murder] statute is viewed as creating a presumption, the presumption at issue here is not analogous to that derided in Sandstrom. The quote from our holding in Nichols, which the dissent uses to validate its contention the felony-murder rule creates and retains a conclusive presumption of the defendant's murderous intent, actually strengthens our holding here. If the felony-murder rule creates a presumption, it does not operate to shift a burden from the state to the defendant, but rather 'substitute[s] proof of the mental state necessary to commit a homicide with proof of the mental state required to commit the underlying felony.' Nichols, 225 Mont. at 450. The Legislature has determined a killing committed during a felony is deliberate homicide, felony-murder, and we are not convinced the statute, were it to be challenged facially, may be unconstitutional simply because it creates criminal liability for deliberate homicide when the state has not shown the accused had the intent to kill. See also State v. Reeves (1990), 234 Neb. 711, 453 N.W.2d 359 (felony murder requires only the intent to commit the underlying felony; once that intent is proved, it is imputed to the killing, and Sandstrom is inapplicable), vacated on other grounds, 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990); People v. Benson (N.Y. 1984), 125 Misc. 2d 843, 480 N.Y.S.2d 811 (intent is not an element of the crime of felony murder, and Sandstrom not implicated); Commonwealth v. Rawls (1984), 328 Pa. Super. 469, 477 A.2d 540 (equating of intent to kill with intent to commit a serious felony is permissible legislative decision reflecting the grav- ity of killing during a serious felony); State v. Sheffield (Tenn. 1984), 676 S.W.2d

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State v. Patterson

542 (statute makes killing during a felony first degree murder and does not have the effect of shifting burden of proof to defendant). Thus, because the felony- murder rule does not in fact raise a presumption of the existence of an element of the crime, it does not violate the due process clause." 325 Mont. at 42.

The Kansas felony-murder rule does not operate as an unconstitutional, conclusive presumption that invades the jury's province. As the State points out, intent to kill is not an element of felony murder in this state. The statute expressly requires proof the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. By codifying participation in the felony as a statutory alternative for the intent and premeditation otherwise required for a first- degree murder conviction, the statute imposes a rule of law. It does not remove from the jury's consideration an intent element required by a criminal statute.

INSTRUCTING THE JURY TO APPLY THE LAW

Patterson argues the district court committed clear error when it instructed the jury it had a "duty" to follow the law as set out in the instructions and that it "should find the defendant guilty" if the State proved all elements of the charged offenses. He contends this undermined the jury's nullification power. His argument has no merit.

Additional facts

Before trial, the district court issued preliminary instructions to the jury, which included:

"Now that you have been chosen as jurors for this trial, you are required to decide this case only on the evidence admitted. At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict. For your verdict to be fair, you must not be exposed to any information about the case, the law, or any of the issues involved in this trial beyond that which is admitted during the trial." (Emphasis added.)

After both parties presented their evidence, the court instructed the jury, "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." (Emphasis added.) The court also told the jury,

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State v. Patterson

"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty. "The test you must use in determining whether the defendant is guilty or not guilty 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." (Emphasis added.)

Patterson did not object to either instruction.

Standard of review

"'Generally, an appellate court reviewing a jury instruction challenge must determine whether the issue was preserved; whether the instruction was legally and factually appropriate; and whether any error was harmless.' Preservation and reversibility are interrelated. When a party fails to object to a jury instruction at trial, we only reverse if the instruction is clearly erroneous, meaning, [the reviewing court] must be '"'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.'"' [Citations omitted.]" State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416 (2019).

Discussion

While a jury has "'the raw physical power' to nullify, or disregard, the law," there is no "'right' to jury nullification." Boothby, 310 Kan. at 630-31. The court has "long held that an instruction telling the jury that it may nullify is legally erroneous . . . because 'it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.'" 310 Kan. at 630. But an instruction that essentially forbids the jury from exercising its nullification power is not legally appropriate. See State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014). In Smith-Parker, the court instructed that the jury "'will enter a verdict of guilty'" absent a reasonable doubt that the state had proven its claims. 301 Kan. at 150. This instruction, the court held, appeared to "[direct] a verdict for the State," because "[a] judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt." 301 Kan. at 164. In reaching its conclusion, the court disapproved of prior caselaw holding "must" and "should" could be used interchangeably in the reasonable-doubt jury

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State v. Patterson instruction, commenting that an instruction that the jury "must" convict would have the same improper effect. See 301 Kan. at 164 (discussing State v. Lovelace, 227 Kan. 348, 607 P.2d 49 [1980]). But in Boothby, the court distinguished Smith-Parker and held there was no error instructing the jury that its "'verdict must be founded entirely upon the evidence admitted and the law as given in [the] instructions.'" 310 Kan. at 631. The Boothby instruction did "not, even arguably, direct the jury to choose a certain verdict," and it was legally correct because the principle that the jury's verdict must be founded on the admitted evidence and law as given in the instructions "is an accurate—and bedrock—statement of law that mirrors the juror's oath; upholds the role of judge and jury; and most importantly, protects the accused." 310 Kan. at 631. In Patterson's trial, the preliminary instruction and Instruction No. 1 informed the jury it must reach its verdict by applying the law provided in the instructions. Those instructions, which are substantively identical to those approved in Boothby, were legally appropriate for the same reason—it is the jury's duty to follow the court's instructions. Also missing the mark is Patterson's claim that it was error to instruct the jury it "should" convict absent reasonable doubt, because he believes the word "should" discouraged the jury from exercising its nullification power. He argues no statute requires or says the jury should enter a guilty verdict if the State proves the charges beyond a reasonable doubt. In Patterson's view, the jury must only be told that it "may" convict upon such proof. But these contentions are undercut by Boothby, which emphasizes it is improper to tell the jury that it may nullify. And the instruction given to Patterson's jury does not raise the "directed verdict" concerns underlying the Smith-Parker decision. The district court did not err in giving these jury instructions.

THE PROSECUTOR'S VOIR DIRE

Patterson makes a related claim that a prosecutor committed error during voir dire by saying that an empaneled jury could not "debate" the law. This argument suffers from the same misunder- standings already discussed.

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Additional facts

During voir dire, a prosecutor had the following exchange with a prospective juror:

"[The Prosecutor]: Okay. The obligation to follow the law, that is a benefit we have in the United States is that we can sit and we can debate about the fairness of laws. You know, you hear it on TV ad nauseum, politics and things like that, and there is no consequences. "True, Juror No. 62, do you feel like you can express your views about things and contradict things during conversations and that is okay? So that was a bad question. . . . . "Like if you are at your work, and it's lunch, you can have a conversation and you can disagree with co-workers, state your own opinion. "Prospective Juror No. 62: Yes. "[The Prosecutor]: Okay. 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." (Emphases added.)

Standard of review

"In considering a claim of prosecutorial error, [the court] follow[s] a two- step analysis. [It] first determine[s] whether an error occurred. Second, if an error has been found, [it] evaluate[s] the prejudice [the error] caused to determine whether it was harmless. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). At the first step, error occurs if the appellate court determines the prosecutor's actions or statements 'fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial.' 305 Kan. at 109. A criminal defendant establishes the first prong by establishing the prosecutor misstated the law or argued a fact or factual inferences with no evidentiary foundation. See State v. Wilson, 309 Kan. 67, 78, 431 P.3d 841 (2018); State v. Hilt, 307 Kan. 112, 124, 406 P.3d 905 (2017)." State v. Ballou, 310 Kan. 591, 596, 448 P.3d 479 (2019).

Discussion

Patterson contends the italicized portions of the prosecutor's comments misstated the law. He relies on the cited arguments and authorities advanced in support of his jury nullification issue, which we already have discounted. There was no error. A jury's verdict must be founded "'entirely upon the evidence admitted and the law as given in [the] instructions.'" Boothby, 310 Kan. at 631. It is not a misstatement of law to "tell[] a jury to follow the

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State v. Patterson law." 310 Kan. at 632. At most, that is all the prosecutor's comment did—tell the jury to follow the law as given in the instructions.

THE HARD 25 LIFE SENTENCE

For the first time on appeal, Patterson lodges case-specific and categorical challenges to his hard 25 life sentence under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. We consider first the obvious preservation problem.

Preservation

In State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015), the court held a proportionality challenge to a sentence's constitutionality raised for the first time on appeal was properly limited to whether the sentence was categorically disproportionate in violation of the Eighth Amendment. The court reasoned,

"[The Court of Appeals] identified that challenges to proportionality under the Eighth Amendment are divided into two classifications: (1) the length of term- of-years sentences given all the circumstances in a particular case; and (2) categorical restrictions on the death penalty. This second classification also encom- passes cases in which the court implements the proportionality standard based on certain categorical restrictions. See State v. Ross, 295 Kan. 424, 428, 284 P.3d 309 (2012). "As a challenge under the first classification is case-specific, which requires factual findings, it is precluded from being raised for the first time on appeal. See Gomez, 290 Kan. at 864-65. Likewise, a challenge under § 9 of the Kansas Con- stitution Bill of Rights generally cannot be raised for the first time on appeal because of the factual inquiries involved. 290 Kan. at 867-68 (application of State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 [1978], factors in § 9 analysis involves both legal and factual inquiries). "The opposite is true under the second classification, a categorical proportionality challenge under the Eighth Amendment. After identifying the nature of the offense and the characteristics of the offender, the Graham Court applied a two-prong analysis in considering a categorical challenge under the Eighth Amendment. This analysis considers whether a national consensus against the sentencing practice exists and instructs the court to use its own independent judgment taking into account precedent and the Eighth Amendment. 560 U.S. at 61. As the factors assessed in a categorical proportionality challenge are not case specific and generally raise questions of law, a categorical proportionality challenge may be raised for the first time on appeal under certain circumstances. Gomez, 290 Kan. at 866. Accordingly, the panel correctly concluded that it could consider only Dull's Eighth Amendment categorical proportionality challenge involving only questions of law." Dull, 302 Kan. at 38-39.

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State v. Patterson

There are at least two reasons for a defendant to ensure adequate factual findings are made in the district court to support appellate arguments on case-specific challenges. One is that the court has repeatedly emphasized this is a prerequisite. See State v. Cervantes-Puentes, 297 Kan. 560, 565, 303 P.3d 258 (2013) (citing cases). The other is that addressing the issue for the first time on appeal deprives the State of the opportunity to develop a record. State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009). Patterson argues his case-specific challenge is appropriately before this court because it involves only a question of law based on relevant facts established at his jury trial and sentencing. He identifies those facts are that he did not fire the gun; had fled the store when Wiley shot Jon; was only 19 years old; had two young children; and had minimal criminal history. But even if those facts are established, they do not tell the whole story needed to evaluate a case-specific, § 9 challenge. And the State's response shows this by reciting additional facts it believes relevant including the alleged circumstances of other crimes Patterson was charged with—but apparently not yet convicted of—at the time of sentencing. We hold that Patterson has not shown why his case is an exception to the general rule that case-specific challenges may not be raised for the first time on appeal. We consider his categorical Eighth Amendment challenge next.

Standard of review

A categorical Eighth Amendment challenge is a question of law over which we have unlimited review. Dull, 302 Kan. at 40.

Discussion

"The United States Supreme Court identifies three subcategories of categorical proportionality challenges. The first considers the nature of the offense, such as a prohibition on capital punishment for nonhomicide crimes against individuals. Graham [v. Florida, 560 U.S. 48, 60-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)] (citing Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 [1982]). The second considers the characteristics of the offender, such as a categorical rule prohibiting the death penalty for juveniles. Graham, 560 U.S. at 61 (citing Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1

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[2005]). The third, which was first recognized in Graham, combines the two because it 'implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.' 560 U.S. at 61." State v. Wil- liams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014).

Patterson's claim fits within the third category. He argues a hard 25 life sentence is unconstitutional for a class of offenders (19-year-olds) given the nature of his offense (those convicted of felony murder for a killing committed by another). But this fails to frame a valid categorical challenge. For one, the class of offenders he identifies is too narrow. "As to the class of offenders, the Supreme Court has categorized defendants by broad characteristics such as those who committed their crimes before the age of 18 or whose intellectual functioning is in a low range." State v. Mossman, 294 Kan. 901, 928, 281 P.3d 153 (2012) (holding first-time offenders is valid category for Eighth Amendment analysis); see Williams, 298 Kan. at 1086-87 (holding first-time offenders over age 18 is valid category). And for another, Patterson narrows the nature of the offense beyond the elements of the crime. See Williams, 298 Kan. at 1087 (noting defendant's valid categorical challenge did not narrow the crime of conviction). But see Mossman, 294 Kan. at 928 (noting Su- preme Court had discussed categories somewhat more narrow than the elements of the crime, citing Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977] [plurality opinion] [holding death penalty was grossly disproportionate to defendant's conviction for rape of an adult]). The substance of Patterson's argument focuses generically on the crime of felony murder. So the analysis must address whether the hard 25 life sentence is categorically disproportionate as applied to young-adult, felony-murder offenders.

"There is a two-prong test when a defendant raises a categorical proportionality challenge to a term-of-years sentence:

'"The Court first considers 'objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by 'the standards elaborated by controlling prece- dents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,' the Court

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must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution."'

"When applying these factors, community consensus is entitled to great weight but it is not determinative. As [the court] noted in Mossman:

'"In accordance with the constitutional design, 'the task of interpreting the Eighth Amendment remains [the Court's] responsibility.' The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals."' [Citations omitted.]" Williams, 298 Kan. at 1087.

The first prong of the categorical analysis is whether there is a national consensus against sentencing young-adult, felony-murder offenders to hard 25 life sentences. Patterson identifies no authority suggesting any jurisdiction treats young adults differently than other adults for sentencing purposes. See Graham, 560 U.S. at 63-64 (reciting nationwide data on number of nonhomicide, juvenile offenders serving life-without-parole sentences). Life imprisonment—with or without some form of parole—is a common punishment for felony murder for offenders 18 years or older. It is authorized in Kansas, 40 other states, and the District of Columbia. See Ala. Code § 13A-6-2; Ariz. Rev. Stat. Ann. § 13-1105; Ark. Code Ann. § 5-4-401; Cal. Penal Code § 190; Colo. Rev. Stat. § 18-1.3-401; Conn. Gen. Stat. § 53a-35a; Del. Code Ann. title 11, § 4209; D.C. Code § 22-2104; Fla. Stat. § 782.04; Ga. Code Ann. § 16-5-1; Idaho Code § 18-4004; Iowa Code Ann. § 902.1; 730 Ill. Comp. Stat. Ann. 5/5-4.5- 20; La. Stat. Ann. § 14:30.1; Md. Code Ann., Crim. Law § 2-201; Mass. Gen. Laws Ann. ch. 265, § 2; Mich. Comp. Laws § 750.316; Miss. Code. Ann. § 97-3-21; Mo. Rev. Stat. § 558.011; Mont. Code Ann. § 45-5-102; Neb. Rev. Stat. § 28-105; Nev. Rev. Stat. § 200.030; N.H. Rev. Stat. Ann. § 630:1-a; N.J. Stat. Ann. § 2C:11-3; N.M. Stat. Ann. § 31-18-14; N.Y. Penal Law § 70.00; N.C. Gen. Stat. § 14-17; N.D. Cent. Code § 12.1-32-01; Ohio Rev. Code Ann. § 2929.02; Okla. Stat. tit. 21, § 701.9; Or. Rev. Stat. § 163.115; 18 Pa. Stat. § 1102; R.I. Gen. Laws § 11-23-2; S.C. Code Ann. § 16-3-20; S.D. Codified Laws § 22-6-1; Utah Code Ann. § 76-5-203; Vt. Stat. Ann. tit. 13, § 2303; Va. Code Ann. § 18.2-10(b); Wash. Rev. Code § 9A.32.040; W. Va. Code § 61-2-2; Wyo. Stat. Ann. § 6-2-101.

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Other jurisdictions authorize lengthy term-of-years punishments, some arguably equivalent to life sentences. Alaska Stat. § 12.55.125 (15-99 years); Ind. Code § 35-50-2-3 (45-65 years); Me. Rev. Stat. tit. 17-A, § 1604 (30 years); Minn. Stat. § 609.19 (40 years); Tex. Penal Code Ann. § 12.32 (5-99 years); Wis. Stat. § 940.03 (15 years in addition to maximum prison term for underlying crime). There is no national consensus against the sentencing practice at issue. The analysis' second prong is whether the court, in its independent judgment, believes the sentencing practice violates the Constitution. On this prong, Patterson leans heavily on the Gra- ham Court's analysis, which culminated in the holding that life without parole sentences are categorically disproportionate when juveniles commit nonhomicide offenses. See Graham, 560 U.S. at 82. The Graham Court noted this factor requires courts to consider the culpability of the offenders at issue in light of their crimes and characteristics, along with the punishment's severity. 560 U.S. at 67. In reaching its outcome, the Court concluded that juveniles are less culpable than adults because they lack maturity, have an underdeveloped sense of responsibility, and are more vulnerable to outside influence. As a result, they could not be classified among the worst offenders. 560 U.S. at 68. The Court also determined that offenses in which there was no killing, intent to kill, or foreseeable loss of life, were less deserving of the more serious forms of punishment than murders. For these reasons, it concluded, juveniles who committed such crimes had "twice diminished moral culpability" as compared to adult murderers. 560 U.S. at 69. And as to the punishment, the Court noted that life without parole is the second-most severe punishment and, like the death penalty, is irrevocable because it leaves no hope of restoration beyond the remote possibility of executive clemency. This sentence is especially harsh for juveniles, who would potentially spend larger percentages of their lives incarcerated than adult offenders. 560 U.S. at 69-70.

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State v. Patterson

The Court concluded the punishment was not adequately jus- tified by any of the legitimate penological goals. The case for ret- ribution was not as strong for juveniles as for adults. Juveniles' lack of maturity and underdeveloped sense of responsibility and the sentencing practice's rarity limited the practice's deterrent effect. Juveniles' capacity for change undercut an incapacitation rationale. And the sentence's irrevocability rendered rehabilitation inapplicable. 560 U.S. at 71-74. But the Graham Court's rationale does not dictate the result Pat- terson seeks. We already have held a hard 20 life sentence is not categorically disproportionate as applied to a juvenile offender convicted of felony murder. State v. Brown, 300 Kan. 542, Syl. ¶ 8, 331 P.3d 781 (2014). And even if young adults have diminished moral culpability as compared to older offenders, a young adult defendant convicted of felony murder does not have the twice diminished moral culpability identified by the Graham Court. The killing at She's A Pistol was a foreseeable consequence of Patterson's participation in an inherently dangerous felony, despite his argument that he did not kill or intend to kill. See State v. Gleason, 277 Kan. 624, 638, 88 P.3d 218 (2004) ("[W]here the underlying felony is one inherently dangerous to human life, such as a burglary, the foreseeability requirement is established as a matter of law."). Moreover, the traditional penological justifications offer more support for the sentence as applied to Patterson's class of offenders than in Graham. As to the sentence's retributive purpose, the foreseeability of killing undercuts Graham's diminished-culpability rationale. As to deterrence, there has been no showing the hard 25 life sentence for felony murder is nearly as rare as the life-without- parole sentence for juveniles convicted of nonhomicide offenses. And as to incapacitation, a hard 25 life sentence is not based on the assumption the offender cannot reform, since an opportunity for parole is built into the sentence. Likewise, the opportunity for parole means the sentence does not "forswear[ ] altogether the re- habilitative ideal" like life without parole does. See Graham, 560 U.S. at 74; see also Brown, 300 Kan. at 564 ("A hard 20 life sentence does not irrevocably adjudge a juvenile offender unfit for society.").

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State v. Patterson

While Patterson strains to put himself in the same position as a juvenile offender, the nature of his offense and the punishment he challenges makes Graham the wrong authority for him to rely on. Graham's central tenets—twice diminished culpability and the sentence's irrevocability—are absent in Patterson's case. The hard 25 life sentence is not categorically disproportionate as applied to young adults convicted of felony murder.

THE APPRENDI CHALLENGE

Patterson's Apprendi challenge requires only brief mention. This court has "repeatedly rejected Apprendi challenges to the use of criminal history scores." State v. Scuderi, 306 Kan. 1267, 1272, 403 P.3d 1206 (2017); see also State v. Shaylor, 306 Kan. 1049, 1050, 400 P.3d 177 (2017) (summarily dismissing claim in opinion's introductory paragraphs). The district court did not err in this regard.

Affirmed.

MICHAEL E. WARD, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 118,180 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. John- son.

²REPORTER'S NOTE: Retired Chief Justice Lawton R. Nuss was assigned to participate in the final decision of No. 118,180 under the authority vested in the Supreme Court by K.S.A. 20-2616.

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Williams v. Geico General Ins. Co.

No. 117,149

ROYCE WILLIAMS, Appellee, v. GEICO GENERAL INSURANCE COMPANY, Appellant.

___

SYLLABUS BY THE COURT

1. INSURANCE—Kansas Automobile Injury Reparations Act—Recovery of PIP Benefits. 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.

2. MOTOR VEHICLES—Kansas Automobile Injury Reparations Act—Stat- ute Does Not Exclude 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.

3. INSURANCE—KAIRA—Recovery of Substitution Benefits—Determina- tion Is Case-by-Case Analysis. To recover substitution benefits, an injured person must prove genuine economic loss or liability for the expenses incurred. Determining whether the injured person establishes genuine economic loss or liability is a case-by-case analysis.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 2, 2018. Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed January 21, 2020. Judgment of the Court of Ap- peals reversing the district court is reversed. Judgment of the district court is affirmed.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and Nathaniel T. Martens, of the same firm, was with him on the briefs for appellant.

Theodore C. Davis, of DeVaughn James Injury Lawyers, of Wichita, argued the cause, and Kathryn A. Wright and Richard W. James, of the same firm, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: The issue here is whether an insurance company owes personal injury protection "substitution benefits" to a person

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Williams v. Geico General Ins. Co. injured in a motor vehicle accident for ordinary and necessary services—such as household-related help or personal care—when furnished by the injured person's spouse. The parties concede reimbursement would be required had the same services been provided by anyone else. A Court of Appeals panel held the insurance company did not have to pay because the wife's obligation to help her husband "was incurred as a result of the marital relationship itself." Williams v. GEICO General Ins. Co., No. 117,149, 2018 WL 683730, at *4 (Kan. App. 2018) (unpublished opinion). We reverse the panel because the statutory definition of substitution benefits makes no such distinction. The district court's award is reinstated.

FACTUAL AND PROCEDURAL BACKGROUND

GEICO General Insurance Company insured Royce Williams when he was injured in an automobile collision. Williams went through surgery and required physical rehabilitation. His physician determined he was "disabled and unable to perform his regular duties at home and needed to have a caregiver provide such duties." The doctor specified that Williams could not do yard work, shovel snow, wash dishes, clean the bathroom, dust, take out the trash, or clean his vehicle and that he could only prepare meals if sitting down. All agree that before the automobile collision, Williams and his wife, Mary, lived together but maintained separate finances and work schedules. Williams generally cooked his own meals, did his own laundry, drove himself, took care of his personal hygiene, did his own shopping, and administered his medication himself. When Williams returned from the rehabilitation hospital, he and Mary agreed she would provide regular caregiver duties for $25 per day. These services included assistance with meal preparation, personal hygiene and bathing, laundry, administering medication, and driving. From December 18, 2015, through March 31, 2016, Mary spent up to five hours a day doing this. She kept detailed itemizations of her services. She indicated she often had to be absent from work during this time.

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Williams v. Geico General Ins. Co.

Williams sought payment for all personal injury protection (PIP) substitution benefits available to him under his policy. GEICO refused and litigation ensued. Their dispute needs some brief background about automobile insurance coverage for a better understanding. Among other provisions, the Kansas Automobile Injury Rep- arations Act, K.S.A. 40-3101 et seq., commonly called the no- fault insurance law, requires every Kansas automobile liability insurance policy to include statutorily specified PIP benefits to the insured and certain other persons. K.S.A. 40-3107(f); see K.S.A. 40-3103(q) (defining PIP benefits). This coverage includes "substitution benefits," defined as

"allowances for appropriate and reasonable expenses incurred in obtaining other ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed for the benefit of such person or such person's family, subject to a maximum of $25 per day for not longer than 365 days after the date such expenses are incurred." K.S.A. 40-3103(w).

In the district court, Williams sought $2,625 in substitution benefits for Mary's services, plus attorney fees and expenses related to the litigation. GEICO denied liability, arguing Mary had a legal obligation imbued from the marital relationship to provide replacement services to her husband. Each party moved for summary judgment based on what they claimed was K.S.A. 40- 3103(w)'s proper interpretation from the undisputed facts. The district court granted judgment for Williams, reasoning the statute does not exclude an injured person's spouse from providing substitution services. It denied his request for attorney fees and expenses. GEICO appealed from the judgment against it awarding Williams substitution benefits. Williams did not cross- appeal the remaining rulings adverse to him, so they are no longer issues. See Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016) (appellee abandons opportunity to challenge district court's adverse ruling on the issue by failing to cross-appeal); K.S.A. 2018 Supp. 60-2103(h) (appellate procedure; cross-appeal). A Court of Appeals panel held the district court erred when interpreting the statute. It agreed with GEICO that married persons, unlike other family members, cannot be a provider or recip- ient of substitution services to each other. Williams, 2018 WL

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Williams v. Geico General Ins. Co.

683730, at *3. The panel relied on Hephner v. Traders Ins. Co., 254 Kan. 226, 864 P.2d 674 (1993), as well as Kansas probate law, criminal law, and the common-law doctrine of necessaries. 2018 WL 683730, at *3-4. The panel reasoned that Mary's duty to assist Williams arose from their marital relationship, so he incurred no economic obligation to reimburse his wife for her care and support arising from his automobile accident. And although the panel acknowledged K.S.A. 40-3103(w) does not expressly exclude a spouse from being an eligible service performer, it believed the Legislature did not intend to "implement a fundamental modification of the concept of mutual marital support obligations in the context of the omission of any such reference in an automobile insurance statute." 2018 WL 683730, at *4. In explaining this rationale, the panel stated:

"[C]ommon law and societal mores have traditionally considered the marital relationship as a distinct and special category apart from the generic 'family' relationship. Marriage has traditionally and legally been determined to create a part- nership of mutual benefits and obligations, not the least of which is the mutual obligation to provide support for each other. The thread of this mutual support obligation is woven through our statutory and common-law jurisprudence. The continuing support obligation lies at the heart of our civil laws governing domestic relations. Our Supreme Court has recognized that under Kansas probate law, a spouse's right to an elective share of a deceased spouse's estate is premised in part on the mutual duties of support which spouses owe, which survives even after death. The criminal laws set forth yet another reflection of this mutual duty—it is undisputed that a person may be charged under K.S.A. 2016 Supp. 21-5606(a) for criminal nonsupport of a child or spouse in necessitous circumstances. [Citations omitted.]" 2018 WL 683730, at *3.

In a separate concurrence, Judge Kim Schroeder agreed the statute and Kansas caselaw required denying payment, but he wrote to emphasize the inequity this creates. He called on the Leg- islature to amend the statute specifically to allow services rendered by a spouse. 2018 WL 683730, at *4-5 (Schroeder, J., concurring). He pointed out:

"After the accident, Mary provided these services and had Royce and Mary merely been cohabitating, Royce would have been entitled to substitution benefits for the services Mary provided. Since Royce and Mary are married, however, he is not entitled to substitution benefits. This creates an inequitable situation which actually punishes a couple for marrying instead of merely cohabitating. If

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Williams v. Geico General Ins. Co. the Legislature amended K.S.A. 40-3103(w) to allow substitution benefits for services rendered by a spouse, this inequity would disappear. "Further, I note amending K.S.A. 40-3103(w) to specifically allow substitution benefits for services rendered by a spouse would ease the financial burden on poorer Kansans whose spouse is injured in an automobile accident. As the law now stands, poorer Kansans may not be able to hire someone to provide ordinary and necessary services for an injured spouse and, as a result, the healthy spouse is hit with a double-whammy of financial hardship: being forced to take time off of work to care for their spouse and not being compensated for their care." 2018 WL 683730, at *5 (Schroeder, J., concurring).

This court granted Williams' petition for review. Jurisdiction is proper. K.S.A. 20-3018(b) (petitions for review of Court of Ap- peals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Our focus is on the statutory term "incurred" as used in K.S.A. 40-3103(w), which declares "'[s]ubstitution benefits' means allowances for appropriate and reasonable expense incurred in obtaining other ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed for the benefit of such person or such person's family . . . ." (Emphasis added.) The parties agree no material facts are in dispute, so we apply a de novo standard of review to this question of statutory interpretation. See Nauheim v. City of Topeka, 309 Kan. 145, 149- 50, 432 P.3d 647 (2019); Polson v. Farmers Ins. Co., 288 Kan. 165, 168, 200 P.3d 1266 (2009). The panel mainly relied on Hephner—the sole case from this court dealing with substitution services provided by family members—and held the requirement for the expense to be "incurred" inevitably precludes a spouse from being a paid service performer. Williams, 2018 WL 683730, at *2, 4. Hephner involved a claim for services by grandparents for their disabled granddaughter, whose mother died in an automobile accident. Two points the court discussed are relevant to Williams' case: (1) Whether reimbursement may be had for services provided by family members,

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Williams v. Geico General Ins. Co. and (2) whether the granddaughter had shown the "genuine economic loss" necessary to obtain substitution benefits. Hephner, 254 Kan. at 227-28, 230. As to the first point, the Hephner court held compensation for substitution services provided by family members was available because the no-fault insurance law places "no limitation on recovery merely because the services were provided by a relative of the insured or survivor," so the reimbursement would be available as long as the granddaughter "actually incurred expenses or liability for expenses in obtaining the services." 254 Kan. at 231-32. As to whether the granddaughter had made that required showing, the Hephner court noted substitution benefits are only recoverable when there has been proof of "genuine economic loss." 254 Kan. at 229-30; cf. ZCD Transp. v. State Farm Ins., 299 Mich. App. 336, 342, 830 N.W.2d 428 (2012) ("An expense is incurred when the insured becomes liable to pay. . . . There must at least be evidence that the service provider expected compensation for its services."). The court expressly held that even though the grandfather admitted he would not try to collect from his granddaughter unless she recovered benefits under the policy, there was sufficient evidence establishing genuine economic loss. 254 Kan. at 234. The Williams panel read Hephner to exclude recovery for Mary's services. It reasoned the Hephner court placed "repeated emphasis on the lack of legal duty or obligation on the part of the family members" in holding the granddaughter incurred expenses for the grandparents' services. In the panel's view, that factor's absence in Williams' case was a dispositive distinction. Williams, 2018 WL 683730, at *3. But, while the grandparents' lack of legal duty to act as "a primary child-care provider" was part of its analysis, Hephner made clear that whether the person seeking reimbursement proves liability for expenses incurred and the existence of genuine economic loss is a case-by-case determination. See 254 Kan. at 232-34. The Williams panel overemphasized what was just one factor in the Hephner court's analysis. The Williams panel identified various authorities sketching out a general obligation existing between spouses to support one another: the common-law doctrine

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Williams v. Geico General Ins. Co. of necessaries, a criminal nonsupport statute, and policy rationale underlying portions of the probate law. Williams, 2018 WL 683730, at *3-4; see also K.S.A. 2018 Supp. 21-5606(a)(2) ("Criminal nonsupport is . . . a person's failure, without just cause, to provide for the support of such person's spouse in necessitous circumstances."); St. Francis Regional Med. Center, Inc. v. Bowles, 251 Kan. 334, 340-41, 836 P.2d 1123 (1992) (doctrine of necessaries); In re Estate of Antonopoulos, 268 Kan. 178, 182-83, 993 P.2d 637 (1999) (discussing purposes of probate code's elective-share provisions, including implementing "support theory," which "recognizes that during their joint lives, spouses owe each other mutual duties of support"]). In the panel's view, these reflected "[t]he thread of [a] mutual support obligation . . . woven through our statutory and common-law jurisprudence," based on which "the obligation of Mary to provide assistance for her husband was incurred as a result of the marital relationship itself." Williams, 2018 WL 683730, at *3-4. For its part, GEICO relies on Dempster v. Bundy, 64 Kan. 444, 67 P. 816 (1902), in its effort to bolster the panel's holding. In Dempster, a creditor tried to collect a debt owed by a husband by executing on his crop. The husband insisted the crop was not his and belonged to his wife under a contract the pair entered into, under which he farmed as his wife's employee. In payment, he contended, his wife agreed to provide work, consisting of "carr[ying] the mail for him" and doing "his housework . . . and [taking] care of his children." 64 Kan. at 446. The narrow question addressed in Dempster was whether a valid contract sprang from "an agreement between husband and wife that the husband shall work for the wife, and in payment for such services the wife shall work for the husband, each engaged in the usual and ordinary af- fairs of life." 64 Kan. at 447. The court held this type of contract was void for lack of consideration and contrary to public policy. 64 Kan. at 450. But Dempster does not describe the contract before us. Wil- liams does not try to cast his spouse's ordinary performance of her household role in their marriage as consideration for a contract. And the undisputed facts show otherwise. One specific passage in Dempster highlights our distinction and deserves mention:

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Williams v. Geico General Ins. Co.

"In In the Matter of Callister, 153 N.Y. 294, 47 N.E. 269, 60 Am. St. 620, it was held that though a woman is serving a man in the capacity of clerk, upon an agreement to pay her annual compensation of $500, such employment to continue as long as he practices law, and such payment not to be made until he retires from business, he, upon their subsequent marriage, becomes entitled to her services without payment. She need not continue serving him as a clerk, but if she does she cannot enforce a promise to pay therefor, however solemnly made. "'The legislation of the state of New York upon the subject of the rights of married women has only resulted in abrogating their common-law status to the extent set forth in the various statutes. They have not, by express provision nor by implication, deprived him of his common-law right to avail himself of a profit or benefit from her services.' [Citation omitted.]" 64 Kan. at 449.

We do not see this passage as accurately reflecting the law of this state. In Kansas,

"Any married person may carry on any trade or business, and perform any labor or services, on his or her sole and separate account; and the earnings of any married person from his or her trade, business, labor or services shall be his or her sole and separate property, and may be used and invested by him or her in his or her own name." K.S.A. 2018 Supp. 23-2604.

At least one other jurisdiction has construed a similar statute as permitting spouses to contract with one another as to their separate estates. See, e.g., Perkins v. Blethen, 107 Me. 443, 78 A. 574, 575 (1911) ("Rev. St. c. 63, § 1, gives to a married woman certain powers over her separate estate which cannot be reconciled with the common-law status of husband and wife."). And another has judicially abrogated its common-law rule declaring contracts-for- hire between spouses unenforceable. In Romeo v. Romeo, 84 N.J. 289, 298, 418 A.2d 258 (1980), the New Jersey Supreme Court noted the rule against interspousal contracts was "'artificial and technical'" and eroded by modern judicial decisions, e.g., abolish- ing interspousal immunity in personal injury actions, and New Jer- sey statutes much like K.S.A. 2018 Supp. 23-2604 conferring upon spouses the right to own property and contract independently. To determine whether Williams is entitled to substitution benefits for the amount he promised to pay Mary for what she did for him, our inquiry is whether he has incurred an obligation to pay her. And as noted previously, K.S.A. 40-3103(w) does not expressly preclude Mary from providing substitution services simply because of her marital relationship with Williams, so we

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Williams v. Geico General Ins. Co. must turn to the undisputed facts presented by Williams that his obligation to pay was incurred. Here, the facts establish Williams incurred an obligation to pay Mary by entering into a contract with her to perform specific services for him that she would not have otherwise performed, while he convalesced. And as the district court noted, the underlying facts were uncontroverted: (1) before the accident, Williams prepared his own meals, did his own laundry, drove himself, took care of his own hygiene needs, did his own shopping, and administered his own medication; (2) those were the services rendered by Mary in return for Williams' promise to pay her $25 per day; (3) had he not suffered bodily harm, he would have performed those services for himself, but his physician ordered him to have a caregiver to do them for him; and (4) from December 18, 2015, through March 31, 2016, Mary spent up to five hours a day providing these services and kept detailed itemizations documenting the services furnished. Adding to those facts is the undisputed recog- nition that payment would be owed under K.S.A. 40-3103(w) if someone other than Mary had rendered the same services. Under different facts, the spouses' mutual support obligations might prevent claiming the existence of an obligation to pay a spouse for substitution services. Hephner teaches that the analysis must be fact-driven and turns on the circumstances—including the nature of the services alleged to have been provided in exchange for payment—in any given case. See Dempster, 64 Kan. at 448 (indicating not all interspousal contracts are void but some are, such as the one at issue). We hold Williams is entitled to PIP substitution benefits for what Mary did, which unquestionably resulted from the automobile accident, because he proved genuine economic loss or liability for expenses incurred. The district court correctly entered judgment in Williams' favor for $2,625 in PIP substitution benefits. The judgment of the Court of Appeals is reversed; the judgment of the district court is affirmed.

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Williams v. Geico General Ins. Co.

LUCKERT, J., not participating.

BARBARA KAY HUFF, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Huff was appointed to hear case No. 117,149 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Consti- tution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

²REPORTER'S NOTE: Retired Chief Justice Lawton R. Nuss was assigned to participate in the final decision of No. 115,119 under the authority vested in the Supreme Court by K.S.A. 20-2616.

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State v. Williams

No. 115,119

STATE OF KANSAS, Appellee, v. CHARLES EDWARD WILLIAMS, Appellant.

___

SYLLABUS BY THE COURT

1. 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.

2. SAME—Kansas Sentencing Guidelines Act—Calculation of Criminal His- tory 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.

3. SAME—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.

4. SAME—Sentencing—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.

5. SAME—Sentencing—Prior Out-of-State Conviction—Offenses Not Com- parable in This Case. Mississippi's offense of unnatural intercourse as stated in Miss. Code 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.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 9, 2017. Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed January 24, 2020. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, 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.

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State v. Williams

Julie A. Koon, assistant district attorney, argued the cause, and Boyd K. Ish- erwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

STEGALL, J.: Charles Edward Williams appeals from his conviction of unintentional second-degree murder. Williams was first convicted for unintentional second-degree murder at a 2011 jury trial. The Court of Appeals reversed that conviction and remanded his case for a new trial. On remand, a jury again convicted Wil- liams of unintentional second-degree murder. Now appealing his second conviction, Williams argues first that his statutory speedy trial rights were violated at his first trial (thereby invalidating everything that came after, including his second trial); second, that the district court imposed a vindictive sentence; and finally that his sentence is illegal because the district court erroneously scored an out-of-state conviction as a person crime. As discussed below, we affirm the Court of Appeals decision rejecting Williams' speedy trial claim, albeit for different reasons. We agree with Williams, however, that his out-of-state conviction was improperly scored as a person crime. Accordingly, we need not reach Williams' vindictive sentence claim and we remand Williams' case for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

After Williams was convicted of second-degree unintentional murder and aggravated battery in 2011, he appealed, his murder conviction was reversed, and the case was remanded for a new trial. State v. Williams, No. 107,366, 2014 WL 274455, at *18 (Kan. App. 2014) (unpublished opinion). A jury again found Wil- liams guilty of unintentional second-degree murder. Following this conviction, several posttrial motions were filed including a pro se motion arguing Williams' statutory speedy trial rights were violated at his first trial. Williams alleged his counsel had continued the case without Williams' presence or approval. Indeed, the district court continued Williams' 2011 trial six times but failed to make a record of these continuances. The court heard arguments on Williams' motion and denied it without reaching its merits:

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State v. Williams

"[The Court:] The motion is denied, but this is why it's denied: I decline to reach the merits of Mr. Williams' argument. Let's make sure we understand the context of the argument. This issue being raised by Mr. Williams on a purported speedy trial violation, that is something that Mr. Williams is alleging occurred throughout the course of litigation leading up to his conviction on trial number one, which, for the record, was in front of Judge Commer. To the extent that that issue had any merit, that was one to be raised on the direct appeal from that first trial conviction. Re- gardless of what issues were raised or not raised on the first direct appeal from trial number 1 conviction, there was a remand of Mr. Williams' conviction on the homicide, and that resulted in trial number 2 occurring before me. What Mr. Williams is asking me to do now is that as he sits there today convicted of the homicide in trial number 2 in the calendar year 2015, I'm being asked to do this, go back in time, jump over the previous appellate court decisions, jump over the previous trial conviction in trial number 1 and litigate that issue of speedy trial. That's not allowed under the law. It's simply not, and I don't reach the merits of it. There could be potentially other avenues on how that's addressed, but in terms of this procedural posture, no, that's overruled. I don't address the merits of it and decline to make any factual findings. So respectfully that motion is overruled for that reason, and certainly if there's appellate review of this motion for speedy trial it was well written, well thought out. I don't express any opinion on the merits of it because I decline to reach it. I don't have to do that, and I'm not going to. In fact, if I did I think it's an illegal ruling by me anyways [sic]."

Proceeding to sentencing, the court acknowledged Williams' trial counsel had filed a notice of objection to Williams' criminal history and a motion for downward dispositional or durational departure. The court recited Williams' trial counsel's motion arguing that Williams' Mississippi felony convictions from 1980 should be classified as nonperson felonies. The district court rejected the motion:

"[The Court:] The motion is denied. Mr. Mank, even in his own motion, concedes that the legislature has attempted to void Murdock, and by that phrase- ology of Mr. Mank I understand as an advocate he's basically pointing out that he doesn't believe that the new statute that Mr. Short cited in terms of the House Bill should be applied retroactively. This is an interesting argument, and I respect Mr. Williams' position in it because Mr. Williams is asking me to follow the law, and Mr. Williams' position is is [sic] that the Supreme Court has spoken on Mur- dock, but what has not been discussed is how post-Murdock the legislature has said we will correct the case law ruling of [the] Supreme Court that we disagree with by legislating new law that will therefore in terms of this case make entries number 1 and 2 person felonies. So the irony is that I'm following the law as it is right now. The legislature has spoken. If the Supreme Court wants to revisit this new statute and say that it cannot be applied retroactive, even though the statute in its plain language says it can, that's fine. This case will be remanded for sen-

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State v. Williams tencing. But the irony is I'm asked to apply obsolete, nonapplicable law and ignore new law. I know what I'm talking about. And that's just for the record for the appellate courts and appellate counsel. That's all that I'm saying here. So it is criminal history score B, objection noted, overruled."

Williams appealed his conviction and sentence to the Court of Appeals, arguing: (1) the district court erred in failing to address Williams' claim that his speedy trial rights were violated in his 2011 trial; and (2) the district court violated Williams' due process rights by imposing a vindictive sentence. The Court of Appeals rejected both claims. State v. Williams, No. 115,119, 2017 WL 2494954, at *1 (Kan. App. 2017). First, the panel rejected Wil- liams' speedy trial claim holding the claim was barred by the doctrine of res judicata. 2017 WL 2494954, at *4-5. Then, the panel rejected Williams' vindictive sentence claim holding that a presumptive sentence on remand or resentencing cannot create a presumption of vindictiveness. 2017 WL 2494954, at *7. Williams petitioned for review, and the State cross-petitioned arguing that the Court of Appeals improperly reviewed a presumptive sentence when it lacked jurisdiction to do so. We granted review of both Williams' petition and the State's cross-petition. After we granted review, Williams submitted a supplemental brief arguing he received an illegal sentence. Williams argued that his Mississippi conviction for unnatural intercourse was erroneously scored as a person felony. Williams claimed that under our decision in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), his Mississippi conviction for unnatural intercourse was erroneously compared to Kansas' crime of aggravated criminal sodomy because the elements of the crimes are not identical or narrower. Thus, he claims his prior Mississippi crime should have been scored as a nonperson offense. The State contends we should not hear Williams' illegal sentence claim. Ultimately, we reject the State's argument and agree with Williams that the district court erred in scoring his Missis- sippi conviction as a person crime. We remand Williams' case for resentencing, rendering his vindictive sentence claim moot. As for Williams' speedy trial claim, we affirm the Court of Appeals as right for the wrong reason. See State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016) (affirming judgment as right for the wrong reason).

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State v. Williams

ANALYSIS

Williams claims his conviction must be reversed because his statutory speedy trial rights were allegedly violated during his first trial. Williams suggests that upon the violation, he had a right to have the charges against him dismissed. And thus, everything that happened after his statutory speedy trial rights were allegedly violated is error and must be vacated by this court, including, of course, his 2015 conviction after retrial. See K.S.A. 22-3402(1) ("If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability."). If the charges had been dismissed, Williams reasons the second trial and conviction would have never happened. We will exercise "unlimited review over a district court's legal rulings regarding violations of a defendant's statutory right to a speedy trial." State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). To the extent we must interpret statutory language, we also exercise plenary review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). For purposes of this discussion, we will assume without deciding that Williams' statutory speedy trial rights were violated during his first trial. Indeed, Williams' 2011 trial was continued six times, extending the period between Williams' arraignment and trial beyond the statutory 90 days required by K.S.A. 22- 3402(1). The district court granted Williams' requests for continuances on December 6, 2010, February 28, 2011, March 14, 2011, and May 31, 2011. The court granted the State continuances on May 10, 2011, and May 31, 2011. But the trial court failed to make a record of these continuances. As a general rule, issues not raised before the trial court cannot be raised on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Williams did not raise the issue during his first appeal from his first trial. Ordinarily, we might still be able to review an unpreserved claim of error if it satisfies one of our preservation exceptions. State v. Dunn, 304 Kan. 773, 819, 375 P.3d 332 (2016). This claim of error is unique, however, in that the statute itself contains a kind of "reset" clause. The statute provides that "[i]n

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State v. Williams the event . . . a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the . . . mandate of the supreme court or court of appeals is filed in the district court." K.S.A. 22-3402(6). This plain and unambiguous language guides our interpretation of the statute. State v. Ayers, 309 Kan. 162, 163- 64, 432 P.3d 663 (2019) ("[A] clear and unambiguous statute must be given effect as written."). The plain language chosen by our Legislature makes it clear that the statutory speedy trial clock in a case resets and starts over as soon as an appellate court issues a mandate to reverse the first conviction. In a sense, then, a statutory speedy trial violation that goes uncomplained of on appeal is "cured" by an appellate court decision to reverse the conviction for other reasons and remand the case for a new trial. Thus, even if Williams is correct that during his first trial, the statutory speedy trial right was violated, the statutory reset effectively started his statutory speedy trial clock over again at zero as soon as the Court of Appeals mandate was filed in the district court following his first appeal. As a matter of law, then, there can be no claim in his second appeal that Williams' statutory speedy trial rights were violated at his first trial. Next, Williams claims in a supplemental brief that his sentence is illegal. Relying on our recent decision in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), Williams argues the district court erred in scoring his Mississippi crime as a person felony, affecting his criminal history score and sentence. Williams asserts that because this rendered his sentence illegal, this court can review the issue at any time. See K.S.A. 2018 Supp. 22-3504. The State replied by filing a supplemental brief arguing that Wetrich was a change in the law that cannot render Williams' sentence illegal if it was legal when pronounced. Williams responded that even if Wetrich is a change in the law, Williams should get the benefit of Wetrich because this is his direct appeal. In addition, the State also moved to strike Williams' supplemental brief. The State argued that Kansas Supreme Court Rule 8.03(b)(6)(C)(i) precludes us from reaching the issue because Williams did not raise the issue before the Court of Appeals or include it in his petition for review. See Supreme Court Rule 8.03(b)(6)(C)(i) (2019

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State v. Williams

Kan. S. Ct. R. 55) ("The Supreme Court will not consider issues not raised before the Court of Appeals or issues not presented or fairly included in the petition for review, cross-petition, or condi- tional cross-petition. The court, however, may address a plain error not presented."). And although our court makes exceptions for issues involving plain error, the State argues that this sentencing issue does not constitute plain error because there has been no showing that there will be an injustice or miscarriage of justice if we do not reach the issue. We disagree. Subjecting a defendant to a longer sentence without a legal basis would be a miscarriage of justice. And bar- ring claims seeking to correct such an error on preservation grounds is inconsistent with our body of law surrounding illegal sentences. See, e.g., K.S.A. 2018 Supp. 22-3504(1) ("The court may correct an illegal sentence at any time."); State v. Ford, 302 Kan. 455, 471, 353 P.3d 1143 (2015) ("[I]t is generally true that changes in the law apply prospectively and only to cases on direct review."). Under the facts and circumstances of this case, Wil- liams has correctly raised his sentencing issue and we review his challenge to his criminal history score exercising an unlimited standard of review. Wetrich, 307 Kan. at 555 ("Classification of prior offenses for criminal history purposes involves interpretation of the KSGA; statutory interpretation is a question of law subject to unlimited review."). Our recent caselaw has explored the ability of defendants to challenge their sentences based on an incorrect criminal history score. Before hearing oral arguments on Williams' case, we revis- ited our interpretation of the "any time" provision in K.S.A. 22- 3504:

"the 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." State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II).

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State v. Williams

Soon after, we announced that "Wetrich was a change in the law as contemplated by Murdock II." State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019). Thus, we agree with the State that Murdock II and Weber preclude Williams from arguing that he received an illegal sentence under K.S.A. 2018 Supp. 22-3504. 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. K.S.A. 2015 Supp. 21-6811(e)(3) ("The state of Kansas shall classify the [out-of-state] crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kan- sas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime."); L. 2015, ch. 5, §§ 2 and 5 (effective April 2, 2015); cf. K.S.A. 2019 Supp. 21- 6811(e)(3)(B) (altering the statutory language on designating an out-of-state felony as a person or nonperson crime). At the time of Williams' sentencing in July 2015, the meaning of "comparable" was defined as the "closest approximation." State v. Williams, 299 Kan. 870, 873-74, 326 P.3d 1070 (2014); State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003) ("For purposes of determining criminal history, the offenses need only be comparable, not identical."). 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. See State v. Newton, 309 Kan. 1070, 1073-74, 442 P.3d 489 (2019). But claiming an illegal sentence under K.S.A. 2018 Supp. 22- 3504 is not a defendant's only recourse. "[A] party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal." Murdock II, 309 Kan. at 591-92 (distinguishing parties who may benefit from a change in the law during the pendency of direct appeal from parties moving to correct an illegal

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State v. Williams sentence who are stuck with the law in effect at the time the sentence was pronounced). 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). In Wetrich, our court decided 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. 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.

Even though we had yet to clarify that Wetrich was a change in our law, Williams correctly points out that if Wetrich was a change in the law, Williams should still benefit from Wetrich because he is on direct appeal. As a result, in order to avoid a sentencing error (as opposed to an illegal sentence), the elements of Williams' Mississippi unnatural intercourse offense must be identical to or narrower than those of Kansas' aggravated criminal sodomy under K.S.A. 2010 Supp. 21-3506. See K.S.A. 2015 Supp. 21-6811(e)(3) ("In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to."); Wetrich, 307 Kan. at 562 ("[T]he 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."). In 1980, when Williams was convicted of unnatural intercourse, Mississippi's statute stated:

"§ 97-29-59. Unnatural intercourse. Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years." Miss. Code Ann. § 97-29-59 (1972).

The district court did not reveal any details from Williams' Mississippi conviction. The district court's determination that Kansas' aggravated criminal sodomy was the comparable offense appears to be solely based on the presentence investigation report's recommendation that the charge of unnatural intercourse was equivalent to Kansas' offense of aggravated criminal sodomy.

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State v. Williams

When Williams committed the current crime of conviction—unintentional second-degree murder—Kansas defined aggravated criminal sodomy as:

"(a) Aggravated criminal sodomy is: (1) Sodomy with a child who is under 14 years of age; (2) causing a child under 14 years of age to engage in sodomy with any person or an animal; or (3) sodomy with a person who does not consent to the sodomy or causing a person, without the person's consent, to engage in sodomy with any person or an animal, under any of the following circumstances: (A) When the victim is overcome by force or fear; (B) when the victim is unconscious or physically powerless; or (C) when the victim is incapable of giving consent because of mental defi- ciency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender. "(b) It shall be a defense to a prosecution of aggravated criminal sodomy under subsection (a)(1) that the child was married to the accused at the time of the offense. "(c) Except as provided further, aggravated criminal sodomy is a severity level 1, person felony. Aggravated criminal sodomy as described in subsection (a)(1) or (a)(2) or attempt, conspiracy or criminal solicitation to commit aggravated criminal sodomy as described in subsection (a)(1) or (a)(2), when the offender is 18 years of age or older, is an off-grid person felony. "(d) If the offender is 18 years of age or older, the provisions of: (1) Subsection (c) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of aggravated criminal sodomy as described in subsection (a)(1) or (a)(2); (2) subsection (c) of K.S.A. 21-3302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of aggravated criminal sodomy as described in subsection (a)(1) or (a)(2); and (3) subsection (d) of K.S.A. 21-3303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of aggravated criminal sodomy as described in subsection (a)(1) or (a)(2)." K.S.A. 2010 Supp. 21-3506.

The State argues we cannot make a comparison between Mis- sissippi's unnatural intercourse offense and Kansas' aggravated criminal sodomy offense because the district court never determined how Williams committed the offense of unnatural intercourse. Mississippi's statute criminalizes "crime against nature committed with mankind or with a beast." (Emphasis added.)

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State v. Williams

Miss. Code Ann. § 97-29-59 (1972). The State argues that to determine whether Kansas has a comparable statute, the district court must examine the facts of Williams' Mississippi conviction. We first note that if the out-of-state crime in question has alternative means, it is the State's burden to establish that the defendant committed a version of the offense supporting the person classification.

"On appeal, the district court's finding that the State met its crime classification burden must be supported by substantial competent evidence to withstand scrutiny. 290 Kan. at 162. The presentence investigation summary frequently can satisfy the State's burden absent defendant's objection, but more is required when the summary does not indicate which version of the out-of-state offense the defendant committed. See K.S.A. 2018 Supp. 21-6814(b), (c). And failing additional proof, the person-crime classification is erroneous as a matter of law. See Wetrich, 307 Kan. at 562 (elements of out-of-state offense must be identical to, or narrower than, elements of Kansas comparator)." State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019).

But even if the State were to have presented evidence of which version of unnatural intercourse Williams committed, comparing the offense of unnatural intercourse to aggravated criminal sodomy under K.S.A. 2010 Supp. 21-3506 would still be erroneous under Wetrich. Mississippi's unnatural intercourse offense criminalizes "the detestable and abominable crime against nature committed with mankind or with a beast." Miss. Code Ann. § 97-29-59 (1972). The element of committing "the detestable and abominable crime against nature" has been broadly defined by the State of Missis- sippi as encompassing the behavior of oral and anal sex. See Mil- ler v. State, 636 So. 2d 391, 396 (Miss. 1994); State v. Davis, 223 Miss. 862, 864, 79 So. 2d 452 (1955). Thus, there are two ways a defendant can be convicted—a defendant may perform these acts on a human or animal. Applying Wetrich's "identical or narrower" elements test, it is plain that the Mississippi statute is broader than the Kansas statute. We do not feel it is necessary to explore the detailed ways the Mississippi statute criminalizes behavior that is not proscribed by Kansas law. Simply put, because Williams' case is pending on direct appeal, he is entitled to the benefit of a change in the law. Because Wetrich changed the law governing Williams' sentence,

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State v. Williams even though Wetrich did not render that sentence illegal, it did render Williams' sentence erroneous. Accordingly, Williams' sentence is vacated and remanded for resentencing in a manner consistent with this opinion. Given this, we find Williams' vindictive sentence argument moot.

Affirmed in part, reversed in part, and remanded with directions.

JOHNSON, J., not participating.1

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 115,119. Justice Johnson retired effective Sep- tember 6, 2019.

²REPORTER'S NOTE: Retired Chief Justice Lawton R. Nuss was assigned to participate in the final decision of No. 115,119 under the authority vested in the Supreme Court by K.S.A. 20-2616.

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State v. Downing

No. 116,629

STATE OF KANSAS, Appellee, v. CHARITY DOWNING, Appellant.

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SYLLABUS BY THE COURT

1. CRIMINAL LAW—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.

2. SAME—Burglary Statute—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."

3. SAME—Burglary—Determination Whether Place Used for Human Habi- tation 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.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 15, 2017. Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 24, 2020. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed.

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

Andrew R. Davidson, senior assistant district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: The State of Kansas seeks review after a Court of Appeals panel reversed a conviction of burglary of a dwelling based on the building owner's testimony that no one lived there when the crime occurred and that he had had no plans to live there or rent it out. State v. Downing, No. 116,629, 2017 WL 6397016 (Kan. App. 2017) (unpublished opinion). We agree with the panel. The statutory definition of "dwelling" requires proof the burgled

VOL. 311 SUPREME COURT OF KANSAS 101

State v. Downing place was used as a human habitation, home, or residence when the crime occurred, or proof that someone had a present, subjective intent at the time of the crime to use the burgled place for such a purpose. See K.S.A. 2018 Supp. 21-5111(k) (defining "dwelling" as "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" [Emphasis added.]). And since the State's case lacked that proof, the panel correctly reversed the conviction and vacated the defendant's sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Charity Downing of burglary of a dwelling and attempted theft under $1,000. The State alleged Downing was responsible for items missing from a rural farmhouse. In his testimony, Jeff Keesling, the property owner, described it as a 100- year-old farmstead with a house, barns, and sheds. The prosecutor asked:

"Q. Okay. Meaning is the house itself a residence, meaning people lived there? "A. Yes. It has been up until just a few, a couple years ago, three years ago and then they moved out and it's sitting there empty but it's still, we keep stuff in there and it's a huge house." (Emphasis added.)

When asked who lived at "this residence" before he owned it, Keesling said his grandparents, his father, his sister, her family, and himself had all lived in the house at various times. On cross- examination, Keesling agreed no one had lived at the farm for about two years, including at the time of the crime. On redirect, the prosecutor had the following exchange with Keesling:

"Q. Mr. Keesling, the residence there, was that, the house is basically intended for use as a residence even though it wasn't being lived in at the time? "A. Yes. I would like somebody to live there but I can't. It's too dangerous to rent it to somebody with all my stuff out there." (Emphasis added.)

In submitting the case to the jury, the district court instructed on the burglary charge:

"Instruction No. 6: In Count One Charity Downing is charged with the offense of burglary. The Defendant pleads not guilty. To establish this charge each of the following claims must be proved:

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State v. Downing

1. The defendant knowingly entered or remained within a building which is a dwelling, 35709 West Clark Road, Sylvia, Kansas. 2. That the defendant did so without authority; and 3. That the defendant did so with the intent to commit a theft therein; and 4. That this act occurred on or about the 30th day of November, 2014 in Reno County, Kansas."

The term "dwelling" was not defined in the court's instructions. But during closing arguments, the State told the jury the farmhouse "was a house. That people lived in the house meaning it was a dwelling and that the people may not have lived there at the time but that property was intended as a dwelling and that's, they had property inside." Defense counsel countered,

"I submit we don't know for sure that [the building] is a dwelling. You heard people had previously lived there but it had been empty for a long time. It was used for storage. Storage upstairs, a few items downstairs. No one had lived there or used it as a dwelling for quite some time."

The State replied,

"[W]e know . . . that Mr. Keesling owned this house, that he had property in it and it was a dwelling. It was not a barn or a shed or an office. It was where people lived, a dwelling. Even though the law doesn't require that I prove that somebody lived there at the time it was intended as a dwelling. It was a dwelling and he had this house, he had stuff inside and he took pretty reasonable precautions to make sure nobody went in his house."

After the jury convicted Downing, she moved for judgment of acquittal, arguing the State failed to prove several elements of the charged offenses, including that the structure in question "was not being used as a dwelling, but was being used as storage." She sim- ultaneously moved for a new trial asserting more generically that "[t]he evidence in the light most favorable to the State does not support the finding beyond a reasonable doubt that Ms. Downing committed either of the crimes stated above." The district court denied these motions without elaboration. Downing timely appealed, and a Court of Appeals panel agreed with her that the State failed to prove beyond a reasonable doubt that the structure "'is used or [is] intended for use' as a place for human habitation." Downing, 2017 WL 6397016, at *2. It reversed the burglary conviction and vacated her sentence.

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State v. Downing

The State timely petitioned for this court's review, arguing the panel erred in two respects: (1) concluding the evidence could not support the burglary conviction, and (2) reversing the conviction, rather than remanding for resentencing on a lesser included charge. We granted review. 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).

THE STATE FAILED TO PROVE THE FARMHOUSE WAS A DWELLING

Whether sufficient evidence supports Downing's burglary conviction turns on whether the statutory definition of "dwelling" requires proof that someone had a present, subjective intention to use the burgled building as a human habitation, home, or residence because there was no evidence it was actually being used for any of those purposes when the crime occurred. The State argues this intent can be inferred simply from the building's character. We disagree.

Standard of review

When a defendant challenges the evidence's sufficiency to support a conviction, an appellate court reviews "all the evidence in the light most favorable to the State" to determine whether "a rational fact-finder could have found the defendant guilty beyond a reasonable doubt." State v. Howling, 310 Kan. 633, 642, 448 P.3d 409 (2019). In doing so, the court does "not reweigh evidence, resolve evidentiary conflicts, or determine witness credibility . . . ." 310 Kan. at 642. Resolving the sufficiency question in Downing's case requires interpretation of the burglary statute. See State v. LeClair, 295 Kan. 909, 911, 287 P.3d 875 (2012) (interpreting statute to resolve defendant's argument that "conviction lack[ed] sufficient evidence as a matter of law" based on defendant's own interpretation of statute). Statutory interpretation is a question of law over which an appellate court exercises unlimited review. State v. Chavez, 310 Kan. 421, 425, 447 P.3d 364 (2019).

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State v. Downing

Discussion

Under the Kansas criminal code,

"(a) Burglary is, without authority, entering into or remaining within any: (1) Dwelling, with intent to commit a felony, theft or sexually motivated crime therein; (2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein; or (3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexually motivated crime therein." K.S.A. 2018 Supp. 21-5807.

"'Dwelling' means 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." (Emphasis added.) K.S.A. 2018 Supp. 21-5111(k). The question in Downing's case is whether Keesling's farmhouse qualified as a dwelling under the statute when the facts indicate it was not being used for such purposes when the crime occurred and Keesling had no current plans to use it or rent it out even if he preferred to do so. This court has not previously considered Downing's issue. But the Court of Appeals has identified circumstances to distinguish when a house or mobile home can be a dwelling when no one lives there. See, e.g., State v. Alvis, 30 Kan. App. 2d 889, 892, 53 P.3d 1232 (2002); Herrick v. State, 25 Kan. App. 2d 472, 478-79, 965 P.2d 844 (1998); State v. Campbell, No. 112,159, 2015 WL 5458574, at *4 (Kan. App. 2015) (unpublished opinion). These cases generally examined three factors—the owner's intended use for the property, the property's character, and the property's conditions—with inconsistent results. In Alvis, which involved two houses, the panel held one was a dwelling within the statutory meaning because the owner intended to move into it five days after an attempted burglary, even though it was still under construction when the crime occurred. But the panel also held another home under construction was not a dwelling because there was no similar evidence showing occu- pancy was imminent and there was no evidence of its conditions to indicate whether it was even capable of habitation. Alvis, 30

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State v. Downing

Kan. App. 2d at 891-92. In Campbell, a mobile home being re- stored after a fire was considered a dwelling because the owner intended to use it as a residence for his children, and not for anything else, such as a storage unit. The owner's intent to use the then-vacant, damaged mobile home as a residence was buttressed by the court's observation that this intended use was not improba- ble, since the fire damage was confined to a single bedroom while the remainder had only smoke damage. Campbell, 2015 WL 5458574, at *4. In Herrick, a vacant house in a residential area was deemed a dwelling when there was "[n]o serious argument denying that the building in question was intended for use as a home . . . ." Herrick, 25 Kan. App. 2d at 478. The Herrick panel noted there was no evidence the house was "so dilapidated as to raise the issue of whether it could be used as a human habitation." 25 Kan. App. 2d at 479. And in State v. Schultz, 22 Kan. App. 2d 60, 63, 911 P.2d 1119 (1996), the panel held a gas station was not a dwelling, absent proof it was used or intended for human habitation, since a gas station "normally . . . would not be considered a 'dwelling.'" The Herrick decision is instructive, even though we take issue with its analysis. There, defendant moved to correct an illegal sentence based on the alleged misclassification of a prior burglary as a person felony. Defendant argued the vacant house he burgled was not a dwelling because he knew no one lived there at the time of the crime. Herrick, 25 Kan. App. 2d at 472. The Herrick panel examined Illinois law, which defined "dwelling" for purposes of residential burglary as a place the "owners . . . actually reside or in their absence intend within a reasonable period of time to reside." (Emphasis added.) 720 ILCS 5/2-6; see 25 Kan. App. 2d at 477. The Herrick panel reasoned the building did not have to be presently used as a residence because a structure intended for use as a residence could be a dwelling as well. The panel found support for this by noting the House Judiciary Committee had explained when considering the definition of "dwelling" in the Judi- cial Council recommendations it had received that:

"'The Sentencing Commission further subdivided 21-3715 based on whether the structure burglarized is a residence. The Criminal Law Committee accepts this subdivision but recommends use of "dwelling" rather than "residence" since dwelling is defined in 21-3110 to mean "a building or portion thereof, a tent, a

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State v. Downing vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." "Residence" is defined in 77-201 to mean "a place which is adopted by a person as the person's place of habitation and to which, whenever the person is absent, the person has the intention of return- ing . . . ."'" 25 Kan. App. 2d at 478.

In the Herrick panel's view, the distinction between "dwelling" and "residence" was dispositive. It concluded the Illinois test was too constrained for the Kansas statute because Illinois focused on whether the structure was a "residence." The panel then decided the vacant house at issue was a dwelling because it "was intended for use as a home . . . ." (Emphasis added.) 25 Kan. App. 2d at 478. In other words, it held the building's residential character rendered it a "dwelling" despite the lack of any evidence at trial about the building's present intended use. But the Herrick panel's rationale sets up a false choice between focusing on whether the structure is a "residence" and a test that focuses on the building's design rather than its actual use. One can imagine examples of places that could be intended for use as a human habitation, yet would not necessarily be considered a residence, such as a vacant hotel room or apartment available for rent. So even though the Herrick panel accurately observed that the Legislature desired "dwelling" to be more inclusive than "residence," this does not make a present, subjective intent an improper touchstone for determining dwelling status under the statute. In Downing's case, the panel took a contrary view from Her- rick. The Downing panel focused exclusively on the owner's subjective intent. It determined "[t]he statute is clear and unambiguous" and held that because Keesling's farmhouse was "not used or [was] not intended to be used as a place for human habitation, it does not meet the definition of a dwelling." Downing, 2017 WL 6397016, at *2. It cited the evidence that Keesling's family had not lived in the house for a long time and that Keesling did not have current plans to rent it. 2017 WL 6397016, at *2. K.S.A. 2018 Supp. 21-5111(k) specifies that to qualify as a dwelling a place "is used or intended for use as a human habitation, home or residence." (Emphasis added.) This language signals in the present tense that the structure in question be used or intended for such use. See Webster's New World College Dictionary 126 (5th ed. 2016) (defining "be" as to "remain or continue").

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State v. Downing

K.S.A. 2018 Supp. 21-5807(a)(2) also supports a present-intent requirement to distinguish between a dwelling and a nondwelling structure, rather than simply using a building design approach. That statute makes burglary of a place illegal even if that place is "not a dwelling" and it gives examples where that crime can occur—enumerating building designs that would ordinarily be considered in the abstract as "intended for use as" habitations, such as manufactured homes and mobile homes. This strongly points to something else besides building design to differentiate dwelling from nondwelling burglaries. We agree with the Downing panel. Absent proof the place burgled was used as a human habitation, home, or residence, the statute's plain language 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. And based on that, the sufficiency question in Downing's case turns on whether the evidence at trial, viewed in the light most favorable to the State, was sufficient for "a rational fact-finder" to find that the farmhouse was "intended for use" as a human habitation, home, or residence when the crime occurred. See Howling, 310 Kan. at 642. We hold that evidence is insufficient here. Keesling's testimony that he would "like somebody to live there but . . . can't" is the best evidence favoring the State on this necessary element for a burglary of a dwelling and it comes up short. Intent suggests having something in mind as a purpose, plan, or design. See Webster's New World College Dictionary 756. At best, the State's evidence establishes only a preference—not a present intent. The panel correctly concluded Keesling's limited testimony was not enough to support Downing's conviction. Finally, we briefly address the State's backup position that the panel should have remanded Downing's case to the district court for resentencing. The State claims the crime of burglary of a structure under K.S.A. 21-5807(a)(2) is a lesser included offense of burglary of a dwelling under K.S.A. 21-5807(a)(1), making remand appropriate. But this argument was not raised until the State's petition for review in our court. It should have been presented as an alternative argument to the lower courts. Because of that, we decline to address it on the merits. See State v. Great Plains of Kiowa County, Inc., 308

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State v. Downing

Kan. 950, 953, 425 P.3d 290 (2018) (noting prudential rule that issue must be submitted to district court or Court of Appeals before Supreme Court will consider it). Adding to the State's diffi- culties, it failed to give any statutory analysis supporting its claim, which supplies yet another basis for declining to entertain the question at this late stage. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) ("'"A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point.'"").

Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed.

1 HENRY W. GREEN, JR., J., assigned.

CHERYL A. RIOS, District Judge, assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 116,629 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: District Judge Rios was appointed to hear case No. 116,629 vice Chief Justice Lawton R. Nuss under the authority vested in the Supreme Court by art.3, § 6(f) of the Kansas Constitution.

VOL. 311 SUPREME COURT OF KANSAS 109

State v. Smith

Nos. 115,321 115,322

STATE OF KANSAS, Appellee, v. WESLEY A. SMITH JR., Appellant.

___

SYLLABUS BY THE COURT

1. COURTS—No Jurisdiction to Review Conviction from Guilty or Nolo Con- tendere 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.

2. APPEAL AND ERROR—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.

3. CRIMINAL LAW—Withdrawal of Plea—Appellate Jurisdiction to Review Denial of Motion. 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.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 26, 2018. Appeal from Sedgwick District Court; TERRY L. PULLMAN and DAVID J. KAUFMAN, judges. Opinion filed January 31, 2020. Judg- ment of the Court of Appeals dismissing the appeal is affirmed.

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

Boyd K. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, 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.: Wesley Smith pleaded guilty to refusing to submit to a test to determine the presence of alcohol or drugs and driving while a habitual violator. In a second case based on separate events, Smith again pleaded guilty to refusing to submit to a test to determine the presence of alcohol or drugs and driving under

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State v. Smith the influence. In a consolidated direct appeal to the Court of Ap- peals, Smith challenged his convictions, arguing that the district court lacked jurisdiction to render them. The Court of Appeals dismissed the appeal for lack of jurisdiction. We affirm.

FACTS AND PROCEDURAL HISTORY

In May 2014, in case 14CR1298 and in connection with events that occurred in September 2013, the State charged Smith with refusing to submit to a test to determine the presence of alcohol or drugs in violation of K.S.A. 2013 Supp. 8-1025, driving while a habitual violator, and failing to signal while turning. Smith filed a motion to dismiss the charge of refusal to submit to an alcohol or drug test, arguing that the statute criminalizing such conduct was unconstitutional. The district court denied the motion. Smith pleaded guilty to refusing to submit to an alcohol or drug test and driving while a habitual violator and, in exchange, the State dismissed the charge for failing to signal while turning. The district court sentenced Smith to 12 months of jail time for the refusal to submit to testing conviction and a concurrent 12 months of jail time for the habitual violator conviction, to be followed by 12 months of postrelease supervision. The court also imposed a $2,500 fine for the refusal to submit to testing conviction and a $500 fine for the habitual violator conviction. In January 2015, in case 15CR218 and in connection with events that occurred in April 2014, the State charged Smith with refusing to submit to a test to determine the presence of alcohol or drugs in violation of K.S.A. 2013 Supp. 8-1025, driving while a habitual violator, and driving on the left half of the roadway. Smith again filed a motion to dismiss the charge of refusal to submit to an alcohol or drug test, arguing that the statute criminalizing such conduct was unconstitutional. The district court denied the motion. Smith pleaded guilty to refusing to submit to an alcohol or drug test and driving under the influence and, in exchange, the State dismissed the remaining charges. The district judge sentenced Smith to 12 months in jail for each conviction and ordered the sentences to run concurrently. The district court also imposed a $2,500 fine for each conviction and ordered one year of postrelease supervision.

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State v. Smith

In November 2015, Smith appealed his convictions for refusing to submit to testing in both cases. The Court of Appeals allowed a late appeal of his first case and consolidated the two appeals into one. On February 26, 2016, we issued an opinion in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017). There, we held that K.S.A. 2014 Supp. 8- 1025—the statute that criminalized refusing to submit to testing for alcohol or drugs—was facially unconstitutional. 303 Kan. at 963. When Smith filed his appellate brief, he relied on Ryce to argue that the court should vacate his convictions. The State moved for involuntary dismissal of Smith's appeal, arguing that the Court of Appeals lacked jurisdiction to consider a direct appeal from a guilty plea. Smith responded in opposition. Both parties submitted briefs. After considering the parties' briefs, the Court of Appeals dismissed the appeal in an unpublished opinion, holding that it lacked jurisdiction to consider a direct appeal from a guilty plea. State v. Smith, No. 115,321, 2018 WL 559804 (Kan. App. 2018). We granted Smith's petition for review.

ANALYSIS

The Court of Appeals dismissed Smith's appeal without considering the merits of his claim—that his convictions should be vacated based on the holding in Ryce—after concluding that it lacked subject matter jurisdiction over the appeal. Smith argues the panel had jurisdiction to review his claim. This court reviews questions of subject matter jurisdiction de novo. Hill v. State, 310 Kan. 490, 498, 448 P.3d 457 (2019). To the extent this question requires the interpretation of statutes, we apply a de novo analysis to that interpretation. State v. LaPointe, 309 Kan. 299, 312, 434 P.3d 850 (2019). "'Subject matter jurisdiction is the power of the court to hear and decide a particular type of action.'" State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016) (quoting State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 [1985]). The Kansas Constitution bestows subject matter jurisdiction upon Kansas courts. Dunn, 304 Kan. at 811.

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State v. Smith

The Kansas Constitution provides that "[t]he judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law." Kan. Const. art. 3, § 1. Pursuant to this provision, the Kansas Legislature created the Court of Appeals and bestowed power upon it "over appeals in civil and criminal cases . . . as may be prescribed by law." K.S.A. 20-3001. As a result of these constitutional and statutory provisions, the Kansas Court of Appeals "may exercise jurisdiction only under circumstances allowed by statute." Flores Rent- als v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007). K.S.A. 22-3601 provides that "[a]ny appeal permitted to be taken from a district court's final judgment in a criminal case shall be taken to the court of appeals, except in those cases reviewable by law in the district court or in which a direct appeal to the supreme court is required." K.S.A. 2018 Supp. 22-3601(a). Thus, the Court of Appeals has jurisdiction to review criminal appeals that are "permitted to be taken from a district court's final judgment." K.S.A. 2018 Supp. 22-3601(a). K.S.A. 22-3602 discusses what appeals are "permitted." It provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507, and amendments thereto." K.S.A. 2018 Supp. 22-3602(a). This court has held that under this statute, the Court of Ap- peals is without jurisdiction to consider the direct appeal of a conviction when a defendant pleaded guilty. State v. Hall, 292 Kan. 862, 866, 257 P.3d 263 (2011). In this case, the Court of Appeals relied on this statutory scheme and the cases from this court to dismiss Smith's appeal for a lack of jurisdiction. Smith, 2018 WL 559804, at *3. Smith avers that the Court of Appeals erred when it came to this conclusion because he is arguing that the district court lacked jurisdiction to convict him of a crime under an unconstitutional statute and K.S.A. 22-3602(a) explicitly allows for appeals based on jurisdictional grounds. He rests this contention on the language in the statute providing that "except that jurisdictional or other

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State v. Smith grounds going to the legality of the proceedings may be raised by the defendant." K.S.A. 2018 Supp. 22-3602(a). Smith ignores the end of that sentence, which is "as provided in K.S.A. 60-1507 and amendments thereto." K.S.A. 2018 Supp. 22-3602(a). Thus, the full language of the statute prohibits appeals from a conviction after a guilty plea but still allows a defendant to challenge convictions based on jurisdiction or the legality of the proceedings "as provided in K.S.A. 60-1507." The ignored language creates some ambiguity that we must address. The intent of the Legislature governs our interpretation of a statute. We give common language its ordinary meaning and turn to canons of construction and legislative history only when the language is ambiguous. Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306 Kan. 845, 850, 397 P.3d 1205 (2017). The language in K.S.A. 22-3602 is unclear. It prohibits jurisdiction in the Court of Appeals over an appeal from a guilty plea "except that jurisdictional or other grounds going to the legality of the proceedings may be raised . . . as provided in K.S.A. 60-1507." (Emphasis added.) K.S.A. 2018 Supp. 22-3602(a). The use of the word "except" suggests that the Court of Appeals lacks jurisdiction to review a direct appeal from a guilty plea in every situation other than those described in the language following the word "except." See Webster's New World College Dictionary 505 (5th ed. 2014) (defining "except" as "to take out"). At first blush, the language following the word "except" seems to bestow jurisdiction in the Court of Appeals to review claims based on "jurisdictional or other grounds going to the legality of the proceedings . . . ." But the sentence continues, indicating that a defendant can raise those claims "as provided in K.S.A. 60-1507." (Emphasis added.) K.S.A. 2018 Supp. 22-3602(a). This additional language creates confusion because K.S.A. 60-1507 allows "[a] prisoner in custody . . . claiming the right to be released" to "move the court which imposed the sentence to vacate, set aside or correct the sentence," thus directing the defendant to file a motion in district court. K.S.A. 60-1507(a). We see two ways to read K.S.A. 22-3602. First, it may be interpreted to create appellate jurisdiction over appeals from guilty or nolo contendere pleas as long as a defendant is challenging his

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State v. Smith or her conviction or sentence based on jurisdiction, the legality of the proceedings, or any of the claims that are permitted under K.S.A. 60-1507. Claims permitted under K.S.A. 60-1507 are those asserting that a conviction or sentence violates "the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." K.S.A. 2018 Supp. 60-1507(a); see also State v. Mitchell, 297 Kan. 118, Syl. ¶ 1, 298 P.3d 349 (2013) (describing K.S.A. 60-1507 as remedy for attacking sentence or conviction). There are problems with this construction. When construing a statute, we must "consider various provisions of an act in pari ma- teria with a view of reconciling and bringing those provisions into workable harmony if possible." Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013) (citing Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1270, 221 P.3d 588 [2009]). We construe those provisions "to avoid unreasonable or absurd results, and we presume the legislature does not intend to enact useless or meaningless legislation." Northern Natural Gas Co., 296 Kan. at 918 (citing Southwestern Bell Tel. Co., 289 Kan. at 1269; State v. Le, 260 Kan. 845, 850, 926 P.2d 638 [1996]). If we construe K.S.A. 22-3602(a) to allow appeals from a guilty or nolo contendere plea whenever a defendant challenges jurisdiction or the legality of the proceedings, or raises any of the permissible claims in K.S.A. 60-1507, we render meaningless some of the language in K.S.A. 22-3602. This statute explicitly prohibits appeals from guilty or nolo contendere pleas. But if the language that follows that prohibition allows appeals in each of the mentioned circumstances, we swallow up the prohibition. While challenges based on jurisdiction may be limited, challenges that rest on "the legality of the proceedings" or a conviction's vulnerability to "collateral attack" would, arguably, be much more commonplace. Such a construction would also render meaningless the language in K.S.A. 22-3602(a) that specifically allows the defendant to raise challenges based on "jurisdictional . . . grounds." K.S.A.

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60-1507(a) also specifically allows for challenges based on a claim that "the court was without jurisdiction." The first proposed construction makes one of these provisions useless. The second way to read K.S.A. 22-3602 is as a statute prohibiting appeals from pleas but ensuring that "prisoner[s] in custody" are still able to file motions under K.S.A. 60-1507 in the district court and appeal rulings on that motion. K.S.A. 60-1507. We think this construction correctly captures the Legislature's intent. This construction gives meaning to all of the language in both statutes. It prohibits direct appeals from guilty or nolo contendere pleas but it confirms that a defendant may still file a motion in district court under K.S.A. 60-1507 and appeal from a judge's ruling on that motion. The slim legislative history surrounding K.S.A. 22-3602 is not particularly illuminating, but it does tend to support this construction. Before 1970, the statute governing criminal appeals permitted "[a]n appeal to the supreme court . . . by the defendant as a matter of right from any judgment against him." K.S.A. 62-1701 (Cor- rick). In 1970, the Legislature repealed this statute and enacted a new one. This new statute created the prohibition on appeals from guilty or nolo contendere pleas:

"An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere: Provided, Jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K. S. A. 60-1507." K.S.A. 1970 Supp. 22- 3601.

There is no helpful legislative history about this change. But in 1972, this court interpreted this provision to "expressly preclude[] appellate review in criminal cases where the defendant pled guilty after July 1, 1970," and it noted that issues raised by a defendant who pled guilty concerning his or her conviction could be "raised and adjudicated in a proceeding under K.S.A. 60-1507." State v. Dunham, 213 Kan. 469, 470-71, 517 P.2d 150 (1972); see also State v. Mitchell, 210 Kan. 470, 471, 502 P.2d 850 (1972) (statute "expressly precludes appeals by persons who plead guilty,

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State v. Smith remitting those who would assert claims like appellant's to their remedy under K.S.A. 60-1507"). In 1974, the Judicial Study Advisory Committee completed a report that described the judicial system and made recommendations for its review. This committee was appointed by the Kansas Supreme Court Chief Justice pursuant to legislative authorization. Report of the Kansas Judicial Study Advisory Committee—Rec- ommendations for Improving the Kansas Judicial System, p. 273 (1974). See 13 Washburn L.J. 271 (1974). When describing Kan- sas Supreme Court jurisdiction, the report stated:

"Any defendant who has been convicted upon a plea of not guilty may appeal as a matter of right from any adverse judgment in the district court and upon appeal any decision or intermediate order may be reviewed. No appeal may be taken by a defendant who has pleaded guilty or nolo contendere, although such defendants may raise objections to the jurisdiction of the court or legality of the proceedings in post conviction proceedings." (Emphasis added.) Report of the Kansas Judi- cial Study Advisory Committee—Recommendations for Improving the Kansas Judicial System, p. 321.

The use of the descriptor "post conviction proceedings" indicates that the committee understood the statute to prohibit appeals from guilty or nolo contendere pleas and to make clear that 60- 1507 motions filed in the district court were not affected by that prohibition. See Report of the Kansas Judicial Study Advisory Committee—Recommendations for Improving the Kansas Judi- cial System, p. 343 (describing "cases arising under K.S.A. 60- 1507" as "post-conviction cases"). In 1975, the Legislature established the Kansas Court of Ap- peals and moved K.S.A. 22-3601 to K.S.A. 22-3602(a). The new K.S.A. 22-3602(a) directed criminal appeals to "the appellate court having jurisdiction of the appeal" rather than to "the supreme court," as the previous statute had. L. 1975, ch. 178, §§ 21-22. This statute was set to go into effect in 1977. Before it did, the Legislature amended the statute again. This amendment resulted in the use of the word "except" to describe the circumstances left out of the prohibition on appeals from guilty or nolo contendere pleas:

"An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or

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State v. Smith intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507." K.S.A. 1977 Supp. 22-3602(a).

The original bill responsible for the 1977 amendments made no changes to K.S.A. 22-3602(a). A senate committee amended the original bill to make the changes that the Legislature eventually enacted. Professor Linda Elrod, who had worked on the bill with Judicial Council, testified during a hearing in the House Ju- diciary Committee about the original bill and the Senate's changes. The minutes state that Professor Elrod informed the committee the changes "simply make[] it clear that these kinds of matters go to the District Court before going to the Supreme Court." Hearing on S.B. 324 before the House Judiciary Committee, March 17, 1977 (minutes describing Professor Elrod's testimony). It is hard to glean much from this testimony, but it at least suggests that the new use of the word "except" was not intended to change the substance of the statute. This leads us to believe that this court's earlier interpretation of the statute in 1972 was correct. Had the Legislature disagreed with this court's understanding that the statute prohibited appeals from guilty or nolo contendere pleas while clarifying that a defendant could still file a 60-1507 motion in district court, the Legislature could have changed the substance of the statute. Its decision not to do so, in light of the ambiguity in the statute and this court's interpretation of the statute, indicates agreement with this court's interpretation. See Dunham, 213 Kan. at 470-71; Mitchell, 210 Kan. at 471; see also State v. Spencer Gifts, 304 Kan. 755, 765, 374 P.3d 680 (2016) (legislative acqui- escence can be indicative of legislative intent). Kansas appellate courts have continued to interpret the statute in this way, and the Legislature has not corrected us. In 1977, the newly created Kansas Court of Appeals held that it did not have jurisdiction of a defendant's appeal from a guilty plea, but that it would have "appellate jurisdiction as to the lower court's ruling on defendant's 60-1507 motion." Esters v. State, 1 Kan. App. 2d 503, 504, 571 P.2d 32 (1977). The Court of Appeals affirmed this interpretation recently in State v. Graham, No. 118,691, 2019 WL

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State v. Smith

1412594, at *5 (Kan. App. 2019) (unpublished opinion). There, a panel held that it did not have jurisdiction to consider the defendant's appeal from his conviction after the defendant pleaded guilty, even though the defendant argued he was challenging the legality of the underlying proceedings. But, the panel noted, the defendant "could pursue his claim in a K.S.A. 60-1507 motion, and he could appeal from any adverse ruling because appeals from K.S.A. 60- 1507 proceedings are not subject to the jurisdictional bar at K.S.A. 2018 Supp. 22-3602(a)." 2019 WL 1412594, at *5. We signaled our agreement with this interpretation in two recent cases. In Hall, a defendant appealed his conviction after pleading guilty, arguing that he had not been competent to plead guilty and that the judge had inadequately informed him of the maximum penalty. This court held that it did not have jurisdiction to consider his appeal. 292 Kan. at 866 (citing State v. Campbell, 273 Kan. 414, 424-25, 44 P.3d 349 [2002], which relied on K.S.A. 22-3602). This court explained that "[a] defendant cannot take a direct appeal from a conviction flowing from a guilty plea. The right to take such a direct appeal is one of the rights surrendered, usually in both a written plea agreement and in open court when the plea is entered." Hall, 292 Kan. at 866. This court pointed out that the defendant could have moved to withdraw his plea in the district court, and this court would have had jurisdiction to review an appeal from a denial to withdraw a plea. But, this court held, a "guilty plea without a subsequent motion to withdraw in the district court deprives us of appellate jurisdiction." 292 Kan. at 867. And in State v. Reu-El, 306 Kan. 460, 478, 394 P.3d 884 (2017) (quoting K.S.A. 2016 Supp. 22-3602[a]), we described the exception in K.S.A. 22-3602(a) as one "that allows collateral proceedings going to 'the legality of the proceedings' even after a no contest plea." (Emphasis added.). The Legislature has not amended K.S.A. 22-3602(a) in response to this longstanding interpretation of the statute. This ac- quiescence, along with the principles of construction described above, leads us to conclude that under K.S.A. 22-3602(a), Smith would have been free to challenge his convictions via a motion in the district court pursuant to K.S.A. 60-1507, but that the Court of

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State v. Smith

Appeals did not have jurisdiction to hear his complaints in a direct appeal from his plea. Smith also advances some alternative arguments. First, he contends that K.S.A. 22-3504 bestowed jurisdiction in the Court of Appeals to review his appeal because it allows a court to correct an illegal sentence at any time. This argument carries no weight, because Smith is not challenging his sentence; he is challenging his conviction. If Smith were challenging his sentence, he would not need to rely on K.S.A. 22-3504. This court has held that "'one who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602 from taking a direct appeal from the sentence imposed.'" State v. Marinelli, 307 Kan. 768, 778, 415 P.3d 405 (2018) (quoting State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 [1986]). Because Smith challenges his conviction, not his sentence, this statute fails to establish appellate jurisdiction of his direct appeal. Next, Smith argues that this court should adopt the holding of the United States Supreme Court in Class v. United States, 583 U.S.__, 138 S. Ct. 798, 200 L. Ed. 2d 37 (2018), and conclude that the Court of Appeals had jurisdiction to review his claim. In Class, the defendant pleaded guilty to "'Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U.S.C. § 5104(e).'" 138 S. Ct. at 802. The defendant immediately appealed his conviction, arguing that the statute criminalizing such conduct was unconstitutional. The Court of Appeals for the District of Co- lumbia Circuit held that the defendant had waived his claim by pleading guilty. The United States Supreme Court reversed, holding that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. 138 S. Ct. at 805. Smith argues that the same rule the Court announced in Class "must apply in Kansas." Smith fails to explain exactly why the rule must apply in Kansas, but it appears his argument is this: The Class Court came to its holding because a district court has no jurisdiction to convict a defendant based on an unconstitutional criminal statute. Because the same is true in Kansas—the district court has no jurisdiction to convict a defendant based on an unconstitutional criminal statute—the Kansas Court of Appeals must

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State v. Smith have jurisdiction to consider an appeal when the defendant challenges the constitutionality of the statute of conviction. Smith's argument is unconvincing. He disregards the significant differences between the rules governing federal appellate jurisdiction and Kansas appellate jurisdiction. In doing so, he leaves out important points of the Class reasoning that make it inapplicable to Kansas law. The United States Constitution vests "[t]he Judicial Power of the United States . . . in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1. Thus, like in Kansas, appellate jurisdiction in the federal system is derived from statute. 28 U.S.C. § 1291 (2012) establishes the power of the federal Courts of Appeals. It provides:

"The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title."

In contrast to Kansas law, there is no explicit statutory bar to appealing a federal conviction after a guilty plea. But the United States Supreme Court has held that a guilty plea generally results in the waiver of the right to appeal a conviction. The Court has explained:

"A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence." United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989).

The Court based this rule on the nature of the guilty plea, not an explicit legislative directive. An admission of guilt, so long as

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State v. Smith it was knowing and voluntary, renders any inadequacies in the proceedings irrelevant. See Menna v. New York, 423 U.S. 61, 62 n.2, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975) ("A guilty plea . . . renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established."). The Class Court acknowledged these principles before considering whether the defendant had waived his right to challenge his conviction on appeal based on an argument that his admitted conduct did not constitute a crime. After reviewing his plea agreement and concluding that he had not explicitly waived that right, the Court held that the defendant could make such a challenge on appeal. His claim did not "focus upon case-related constitutional defects that '"occurred prior to the entry of the guilty plea"'" and would have been "'irrelevant to the constitutional validity of the conviction.'" Class, 138 S. Ct. at 804-05 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L. Ed. 2d. 628 [1974], and Haring v. Prosise, 462 U.S. 306, 321, 103 S. Ct. 2368, 76 L. Ed. 2d 595 [1983]). Rather, the defendant's claim "call[ed] into question the Government's power to '"constitutionally prosecute him."'" Class, 138 S. Ct. at 805 (quoting Broce, 488 U.S. at 575). This description of Class and federal appellate jurisdiction shows that the reasoning in Class has no applicability in Kansas. Pursuant to statute, the Kansas Court of Appeals has no power to hear appeals from a conviction after a defendant pleads guilty. K.S.A. 22-3602(a). In contrast, federal appellate courts do have jurisdiction to hear appeals from a conviction after a defendant pleads guilty or nolo contendere. They generally do not hear these appeals, but only because the defendant has implicitly waived most of his or her potential arguments—not because the court has no power to do so. In Kansas, there is an explicit statutory rule prohibiting appellate review of a conviction when a defendant pleads guilty. We cannot adopt the Class reasoning in Kansas so long as this statutory bar to appellate jurisdiction exists. Smith's argument fails. Finally, Smith argues that the Court of Appeals has jurisdiction to consider his appeal because a conviction based on activity

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State v. Smith that is not a crime is void, and courts have no power to leave a void judgment in place. Smith rests this argument on some legal truth. In 1903, the Kansas Supreme Court observed that "an unconstitutional law is a nullity—is no law at all—and . . . a conviction under it is not merely erroneous, but void, and subject to collateral attack upon habeas corpus." In re Jarvis, 66 Kan. 329, 331, 71 P. 576 (1903). It has also noted that "'[a] conviction in a court that lacks jurisdiction is void.'" State v. Elliott, 281 Kan. 583, 585, 133 P.3d 1253 (2006). General considerations for justice suggest that there must be some way to vacate a void conviction. Smith insists that the way to do this is through the direct appeal. But Smith has not offered any persuasive support for this assertion. He simply argues that a court has "no power to leave the conviction in place." Appellate jurisdiction does not work this way; it is entirely statutory, thus requiring an explicit grant of power in an appellate court. As we have discussed, there is no appellate jurisdiction when a defendant pleaded guilty. This result is unsettling, because it suggests there is no way to vacate a void conviction. But Smith has two possible avenues for seeking relief in his case. While he was serving his sentence, he could have filed a motion in the district court under K.S.A. 60-1507. Because he is no longer serving his sentence, this avenue is foreclosed to him. See Mundy v. State, 307 Kan. 280, 286, 408 P.3d 965 (2018) (court has subject matter jurisdiction to consider motion under 60-1507 only when motion filed by prisoner in custody). However, a second avenue is still available to Smith—he can move to withdraw his plea. K.S.A. 2018 Supp. 22-3210(d)(2) allows a court to "set aside the judgment of conviction and permit the defendant to withdraw the plea" after sentence to "correct manifest injustice." If Smith files a motion to withdraw his plea, and the district court denies the motion, the Court of Appeals will have jurisdiction to consider an appeal from that denial. See State v. Solomon, 257 Kan. 212, 219, 891 P.2d 407 (1995). None of Smith's arguments convince us that the Court of Ap- peals erred when it dismissed his appeal for lack of jurisdiction.

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State v. Smith

K.S.A. 22-3602(a) explicitly provides that a defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows appeals of sentences, not convictions, and the federal caselaw allowing for direct appeals after guilty pleas in certain situations is inapplicable here. Finally, Smith's convictions may be challenged in other ways, so notions of justice do not demand appellate jurisdiction.

The Court of Appeals is affirmed.

MICHAEL J. MALONE, District Judge Retired, assigned.1

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case Nos. 115,321 and 115,322 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. Johnson.

²REPORTER'S NOTE: Retired Chief Justice Lawton R. Nuss was assigned to participate in the final decision of No. 115,321 and 115,322 under the authority vested in the Supreme Court by K.S.A. 20-2616.

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State v. Boeschling

No. 116,757

STATE OF KANSAS, Appellee, v. MORGAN L. BOESCHLING, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—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.

2. SAME—Jury Instructions—Buglary 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.

3. SAME—Jury Instruction Regarding Accomplice's Testimony. State v. An- thony, 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.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 29, 2017. Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed February 14, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Andrew R. Davidson, assistant district attorney, argued the cause, and Keith Schroeder, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: Morgan L. Boeschling and a friend burglarized a restaurant and stole a pickup truck. Police also discovered that Boeschling owned two guns despite being prohibited from owning firearms because of a previous adjudication. The State tried

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Boeschling for all these offenses in one trial. The jury convicted Boeschling on all counts. Boeschling appeals, arguing that the district court judge's response to the jury's mid-deliberation question about jury nullification was reversible error. We hold that the judge's response was not error. Boeschling also takes issue with two jury instructions: one defining the elements of burglary and one cautioning the jury about accomplice testimony. We hold that the burglary instruction was erroneous but not reversible; the accomplice instruction was not error. Boeschling's convictions are affirmed.

FACTUAL AND PROCEDURAL HISTORY

When employees came to work at the Bull's Eye Grill in Yoder, Kansas, on the morning of July 28, 2015, they discovered that the restaurant had been burglarized. The cash register was missing; a safe had been broken into; and a bank bag containing about $600 was gone. The same night that the restaurant was burglarized, a pickup was stolen from a mechanic's shop next door. The Reno County Sheriff's Office investigated. The State charged Boeschling and Cody Osborn in the case. Osborn pleaded guilty to burglary of the restaurant, theft of the money, and theft of the pickup. Boeschling went to jury trial on charges of nonres- idential burglary, felony theft, and two counts of criminal possession of a firearm. At trial, Detective David Post testified that he posted a still image taken from a security camera near the restaurant on the Reno County Sheriff's Office Facebook page. The image showed two people walking near the restaurant about 1:30 a.m. the night of the break-in. Post asked for the public's help identifying the individuals. Post received tips pointing him to Boeschling and Os- born. While investigating Boeschling, Post discovered that Boesch- ling pawned two guns in the weeks before the break-in. Post also learned that Boeschling had a juvenile adjudication that prohibited him from legally owning firearms. Post interviewed Boeschling. Boeschling admitted that he was pictured in the surveillance footage but declined to identify the

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State v. Boeschling other person in the picture. He ultimately admitted that he burglarized the restaurant and stole the pickup from the mechanic's shop. He also told Post that he pawned the two guns. Osborn, who had already entered his guilty pleas, testified on Boeschling's behalf. He said that he broke into the restaurant by himself, broke into the safe, and took the register; Boeschling came into the restaurant only to get him to stop. Osborn also testified that he was the one who stole the pickup. On cross-examination, he admitted that when Post first interviewed him, he hesi- tated to admit that Boeschling was with him that night. Boeschling also testified in his defense. He said that Osborn was very drunk the night of the burglary. Boeschling drove the pair to downtown Yoder and parked; the pair wandered around together. According to Boeschling, Osborn then said he had to uri- nate; so Boeschling watched Osborn walk away by himself. After waiting a period of time, Boeschling noticed that a building's lights were on. Boeschling went into the building and found Os- born trying to open the cash register. Boeschling "got [Osborn] out" of the building and into the car but said he did not realize until he was driving that Osborn had the cash register with him. Boeschling told Osborn he needed to get rid of it, and Osborn threw it out the car window. The pair went to Osborn's girlfriend's house, where Osborn drank more alcohol. Osborn decided to leave and, rather than let- ting Osborn drive while drunk, Boeschling drove Osborn back into Yoder. According to Boeschling, Osborn "kept talking about what he wanted to do." Boeschling let Osborn out of the car and left because he "didn't want no part of it." Then Osborn stole the pickup. Boeschling said that he refused to identify Osborn to Post when interviewed because he did not want to snitch, and he confessed to the burglary and thefts only "because [he] didn't want to see [Osborn] go to jail for being stupid." Before closings, the State and Boeschling's counsel discussed jury instructions with the district judge. Although neither the State nor Boeschling requested it, the district judge included an accomplice instruction in his packet of proposed jury instructions. The instruction read: "An accomplice witness is one who testifies that

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State v. Boeschling he was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice." Boeschling objected to this instruction, arguing, despite caselaw to the contrary, that an accomplice instruction is not appropriate when "the accomplice provides supportive testimony" to the defendant. The district judge overruled Boeschling's objection. The first instruction given jurors informed them that it was the district judge's duty to instruct the jury "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." The district judge also gave the accomplice instruction to which Boeschling had objected. The judge instructed the jury on burglary by saying the State must prove:

"1. That Morgan Boeschling knowingly entered or remained within a building, which is not a dwelling . . . ; "2. That Morgan Boeschling did so without authority; "3. That Morgan Boeschling did so with the intent to commit a theft therein; and "4. That this act occurred on or about [the] 28th day of July, 2015, in Reno County, Kansas. "The elements of theft are set forth in Instruction No. 8. "The state must prove that Morgan Boeschling committed the crime of burglary knowingly. A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about."

At no point did Boeschling object to the content or the giving of this instruction. During deliberations, the jury sent a question to the district judge, asking "can jury nolification [sic] be applied to counts #3 and #4?" Counts three and four were the firearms charges. With- out objection from the State or Boeschling, the district judge responded: "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." The jury convicted Boeschling on all counts. The district judge sentenced Boeschling to 24 months' probation with an underlying sentence of 27 months for burglary, 6 months for theft, and 8 months for each firearm possession count.

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Boeschling appealed. A panel of our Court of Appeals found no reversible error and affirmed Boeschling's convictions. State v. Boeschling, No. 116,757, 2017 WL 6625546 (Kan. App. 2017) (unpublished opinion). We granted Boeschling's petition for review.

DISCUSSION

The district judge's response to the jury's nullification question was not error.

As set forth above, the members of Boeschling's jury asked if nullification can "be applied" to the firearm charges. The district judge responded: "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." Boeschling asserts that the district judge's answer "affirm- atively misinform[ed]" the jury and "clearly implies that jury nullification did not apply." The State argues for the first time before this court that Boeschling did not preserve this issue for our review. Boeschling asserts that the State cannot contest preservation before us because the State did not argue that point to the Court of Appeals and did not cross-petition the panel's decision reaching the merits of the issue. Boeschling is correct. Under this court's rules in effect at the time the petition for review was submitted, the issue of preservation is not properly before this court. The State failed to argue lack of preservation before the Court of Appeals and failed to cross- petition for review of the Court of Appeals' opinion. See State v. Brosseit, 308 Kan. 743, 746-47, 423 P.3d 1036 (2018); State v. Gray, 306 Kan. 1287, 1292, 403 P.3d 1220 (2017); Supreme Court Rule 8.03(b), (h)(1) (2018 Kan. S. Ct. R. 53). This court recently outlined the relevant standards of review for answers to jury questions in State v. McLinn, 307 Kan. 307, 341, 409 P.3d 1 (2018):

"A district court has a 'mandatory duty to respond to a jury's request for further information as to the law of the case,' although '[t]he manner and extent of the trial court's response rest in the sound discretion of the trial court.' . . . . "'In deciding whether error occurred, a district court's response to a mid- deliberation jury question is reviewed for abuse of discretion.' . . . In making this determination, we apply an unlimited standard of review to the determination of

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State v. Boeschling whether the district court's response was a correct statement of the law—a legal question. 'But when looking at which legally appropriate response the court should have made, [this court] accord[s] the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.' [Citations omitted]."

The party alleging an abuse of discretion has the burden to establish that it occurred. State v. Garcia, 295 Kan. 53, 61, 283 P.3d 165 (2012). The State and Boeschling disagree on the harmlessness framework that should apply if an abuse of discretion is shown. Because we ultimately hold that no error occurred, we need not settle their dispute on the harmlessness standard today. Contrary to Boeschling's argument, the district judge's response to the jury's question did not amount to affirmative misin- formation, imply that nullification did not apply, or amount to a warning that nullification would violate the jurors' oaths. The jurors were certainly already aware that they had taken an oath to "return a verdict according to the law and the evidence." K.S.A. 2018 Supp. 60-247(d). And the significant remaining substance of the judge's response merely repeated the correct statement of the law he had already recited at the opening of the jury instructions, i.e., that jurors had a "duty to consider and follow all of the instructions" and "must decide the case by applying these instructions to the facts" they found. The judge did not impermis- sibly coerce the jury in favor of the State. See State v. Smith-Par- ker, 301 Kan. 132, 163-64, 340 P.3d 485 (2014) (disallowing jury instruction saying, "'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 will enter a verdict of guilty'"; judge cannot compel jury to convict, even if it finds all elements proved beyond reasonable doubt). Rather, the district judge discharged his mandatory duty to respond to the jury's question with a legally correct answer. See McLinn, 307 Kan. at 341. And the only legally correct response was not, as Boeschling asserts, "yes." In fact, answering "yes" would have run afoul of this court's long-stated rule that juries cannot be instructed on nullification. In State v. McClanahan, 212 Kan. 208, Syl. ¶ 4, 209, 510 P.2d 153 (1973), this court held that an instruction that jurors are "'entitled to act upon [their] conscientious feeling about what is a fair

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State v. Boeschling result in this case and acquit the defendant if you believe that justice requires such a result'" was never appropriate. We said:

"Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instruction by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon." 212 Kan. at 217.

And we further noted that "power is one thing and proper function and legal duty is another. The jury's legal duty to act 'according to the law' is clearly set forth in the statutory oath administered to every juror." 212 Kan. at 214. In the forty-plus years since McClanahan, this court has continued to issue rulings consistent with it. See State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416 (2019) ("[J]uries have 'the raw physical power' to nullify, or disregard, the law . . . [b]ut . . . we have long held that an instruction telling the jury that it may nullify is legally erroneous."); State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011) (defendant not entitled to have jury instructed on power of nullification). "[A] district court does not err when it tells a jury to follow the law." Boothby, 310 Kan. at 632. Further, "telling a jury to follow the law does not prevent the jury from exercising its raw power to nullify." 310 Kan. at 632. The district judge's response to the jury question in this case was not error.

The burglary instruction was erroneous but not reversible.

The standard of review for jury instruction challenges is a fa- miliar one:

"'When analyzing jury instruction issues, an appellate court follows a three- step process by: (1) Determining whether the appellate court 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; (2) considering the merits to determine whether error occurred; and (3) assessing whether the error requires reversal. . . . Whether a party has preserved a jury instruction issue affects the reversibility inquiry at the third step . . . see also K.S.A. 2015 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.") . . . .

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"'At the second step, [the court] consider[s] whether the instruction was legally and factually appropriate, employing an unlimited review of the entire record.' [Citations omitted.]" State v. McDaniel, 306 Kan. 595, 614, 395 P.3d 429 (2017).

Boeschling concedes he did not object to the wording of the burglary instruction in the district court. Under K.S.A. 2018 Supp. 22-3414(3), the clear error framework applies when a party fails to object to an instruction below but claims that instruction is error on appeal. Boeschling, however, contends that the district judge failed "to accurately instruct the jurors on the essential elements of the crime." Thus, he argues that the constitutional harmless error framework should apply. He cites State v. Richardson, 290 Kan. 176, 183, 224 P.3d 553 (2010), for the proposition that "failure to include elements of instruction [is] subject to constitutional harmless error test, even where not objected to below." The problem with Boeschling's argument on the harmlessness standard is that the district judge did not fail to include the correct mens rea element of burglary in this case. The instruction accurately stated that the jury must find that Boeschling entered the building "with the intent to commit a theft" inside. This is what the charged crime of burglary required. K.S.A. 2015 Supp. 21- 5807(a)(2) (burglary defined as "without authority, entering into or remaining within any: . . . building . . . or other structure which is not a dwelling, with intent to commit a . . . theft . . . therein"). We also note that the district judge correctly defined "intentionally" in the theft instruction regarding the pickup. He stated: "A defendant acts intentionally when it is the defendant's desire and conscious objective to do the act complained about by the [S]tate." See K.S.A. 2018 Supp. 21-5202(h). The error in the district judge's burglary instruction was not under-inclusion but over-inclusion. In addition to setting out the culpable mental state requirement explicitly provided for in the defining statute, his burglary instruction also stated that Boesch- ling must have "knowingly" entered the building and that the State must prove that he "committed the crime of burglary knowingly. A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about." Putting aside for the moment as uncontested today whether a person committing what is alleged to be a burglary must be aware he or she is

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State v. Boeschling unauthorized to enter or remain inside a building, see State v. Mur- rin, 309 Kan. 385, 398, 435 P.3d 1126 (2019) (analyzing criminal trespass), we observe that the statute defining the burglary does not explicitly include a "knowingly" requirement of any kind. Thus we hold that the judge's insertion of "knowingly" into the burglary instruction was legally inappropriate. Still, this mistake does not merit reversal as clear error. Alt- hough knowledge is a lesser culpable mental state than intent, see K.S.A. 2018 Supp. 21-5202(b), the inclusion of "knowingly" twice in the burglary instruction in this case actually added to the State's burden to prove guilt beyond a reasonable doubt. There was no harm done to Boeschling or his defense; if anything, the district judge gave him an unwitting, if ultimately unsuccessful, assist.

The accomplice instruction was not error.

The three-step standard of review stated at the outset of our discussion of the preceding issue applies to this issue as well. First, this court looks to preservation; then legal and factual appropri- ateness; and, finally, reversibility. McDaniel, 306 Kan. at 614. Here, Boeschling preserved this issue for this court's review because he objected to the district judge's accomplice instruction. See State v. Salary, 301 Kan. 586, 592, 343 P.3d 1165 (2015). Thus, if this court concludes there was error, the State must per- suade us that "'there is no reasonable probability that the error will or did affect the outcome of the trial.'" 301 Kan. at 599. Boeschling asserts that the district judge's sua sponte accomplice instruction was "inappropriate" but does not specify whether he believes it to have been factually inappropriate, legally inappropriate, or both. A brief recap of the relevant factual and procedural history: In his interview with Post, Boeschling confessed to committing both the theft of the pickup and the burglary of the restaurant. He refused to identify the other individual seen in the security footage with him. Despite his refusal, the State charged both Boeschling and Osborn with the burglary and theft. Osborn pleaded guilty to burglary of the restaurant, theft of the money, and theft of the

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State v. Boeschling pickup. Once Boeschling reached trial, he recanted his earlier confession—testifying that he did not participate in Osborn's crimes. Likewise, Osborn testified that he acted alone and that Boeschling entered the restaurant only to make him stop. He admitted that, like Boeschling, when first interviewed by Post he refused to identify Boeschling as the other man in the security footage. The district judge instructed the jury that "[a]n accomplice witness is one who testifies that he was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice." This instruction was taken verbatim from PIK Crim. 4th 51.090 (2014 Supp.). Boeschling contends that "[l]abeling Osborn as an accomplice after the jury received information that he had committed and pled guilty to the same crimes heavily prejudiced" Boeschling because it "label[ed] the convicted criminal [as] his 'accomplice'" and "attached an inference that the statements were suspect." This court addressed Boeschling's precise concern in State v. Anthony, 242 Kan. 493, 498, 749 P.2d 37 (1988). In that case, defendant Billy Joe Anthony challenged the district judge's decision to give the same accomplice instruction with respect to Anthony's girlfriend's testimony, which had been favorable to him. Anthony had been charged with felony cocaine possession. Before his trial, his girlfriend had pleaded guilty to possession of the same drugs in a separate case. The girlfriend testified in Anthony's trial that the drugs police had found in Anthony's study were hers and that Anthony knew nothing about them. This court elected to adopt what it identified as a minority position and held that a "cautionary instruction on accomplice testimony is proper in all circumstances where an accomplice testifies." 242 Kan. at 502. The opinion further observed that "[s]uch testimony on behalf of defendants is becoming more prevalent all the time, particularly by spouses or convicted friends of the accused who have nothing to lose by taking the blame." 242 Kan. at 502. The Anthony decision also expressly considered whether the instruction's use of the term "accomplice" prejudiced the defense.

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State v. Boeschling

We noted that the average juror may believe that the term "accomplice" "connotes two parties 'equally concerned in the commission of crime.'" Because the jury "knew [his girlfriend] was guilty [and] it was instructed she was an accomplice," the average juror might believe "Anthony must also be an accomplice and must also be guilty." 242 Kan. at 499. Nevertheless,

"the defendant was not branded as one who committed a crime. The instruction states the accomplice witness is one who testifies he was involved in the commission of the crime 'with which the defendant is charged.' That is not prejudicial, particularly where the witness testifies she committed the crime and the defendant is innocent." 242 Kan. at 502.

Anthony is still good law. See State v. Smith, 296 Kan. 111, 127-29, 293 P.3d 669 (2012) (citing Anthony; accomplice instruction appropriate despite defendant's objection that it "created a negative inference regarding the testimony of [other, nonaccomplice witnesses] in this trial," leading jury to conclude testimony of other witnesses, including nonaccomplice jailhouse informants, "should not be weighed with caution"). Boeschling's heavy reliance on a Court of Appeals panel's unpublished decision in State v. Swarthout, No. 94,823, 2007 WL 2377084, at *3 (Kan. App. 2007), is wholly unpersuasive. The Swarthout decision, which stated that a district judge's sua sponte accomplice instruction would have been inappropriate in different circumstances, did not mention Anthony or acknowledge its binding precedential value. There was no error in the giving of an accomplice instruction in this case. It was legally appropriate under Anthony. It was also factually appropriate because both Boeschling and Osborn testified that they were friends; both admitted lying to the police or concealing information from them on one another's behalf; and Osborn had already pleaded guilty to the theft and burglary, the same crimes on which Boeschling stood accused.

CONCLUSION

For all of the reasons detailed above, defendant's convictions are affirmed.

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State v. Boeschling

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. 116,757 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. 116,757 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.

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State v. Fowler

No. 116,803

STATE OF KANSAS, Appellee, v. BRANDON L. FOWLER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Kansas Sentencing Guidelines Act—Multiple-Convic- tion 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.

2. SAME—Sentencing—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.

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 92, 408 P.3d 119 (2017). Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed February 14, 2020. Judgment of the Court of Ap- peals affirming the district court is affirmed. Judgment of the district court is affirmed.

Caroline Zuschek, 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

BEIER, J.: Brandon Fowler pleaded guilty to felony possession of methamphetamine, felony domestic battery, and violation of a protective order. His domestic battery conviction qualified as a felony rather than a misdemeanor because it was his third such conviction within five years. In calculating Fowler's criminal history score to determine the sentence for his drug possession con-

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State v. Fowler viction, the district court judge included the same two misdemeanor domestic battery convictions that had been used to elevate Fowler's current domestic battery to a felony. In his appeal, Fowler argues that the district judge engaged in prohibited "double counting" of two prior misdemeanor domestic battery convictions under K.S.A. 2015 Supp. 21-6810(d)(9), which then read: "Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction." A majority of the Court of Appeals panel reviewing this challenge from Fowler rejected it, concluding that "[w]hen a defendant is being sentenced for multiple felony convictions, the term 'present crime of conviction' as contained in K.S.A. 2015 Supp. 21-6810(d)(9) refers only to the primary crime referred to in K.S.A. 2015 Supp. 21-6819(b)(2)." State v. Fowler, 55 Kan. App. 2d 92, Syl. ¶ 5, 408 P.3d 119 (2017). Court of Appeals Judge Thomas E. Malone dissented. We agree with the majority's conclusion, although we reach it by a slightly different route. We therefore affirm its decision and the district court's judgment.

PROCEEDINGS IN DISTRICT COURT

Fowler and the State reached a plea agreement, under which Fowler pleaded guilty to felony possession of methamphetamine, felony domestic battery, and violation of a protective order. The agreement was based in part on the parties' mutual belief that Fowler's criminal history score of "E" made his presumptive sentence probation under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. The presentence investigation revealed instead that Fowler's criminal history score for sentencing of his "primary" or "base" crime of felony methamphetamine possession was "B"—based on two adult person felonies, two adult nonperson felonies, one adult person misdemeanor, and nine adult nonperson misdemeanors. Six person misdemeanors were converted to the two person felo-

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State v. Fowler nies under K.S.A. 2015 Supp. 21-6811(a) (every three person misdemeanors convert to one person felony). Two of the six were domestic battery convictions on March 28, 2012, and December 23, 2013; these fell within a five-year window immediately preceding the current domestic battery. This timing made Fowler's current misdemeanor battery a felony rather than a misdemeanor. See K.S.A. 2015 Supp. 21-5414(b)(3). Fowler's criminal history of "B" combined with the drug severity level 5 classification of felony possession of methamphetamine placed him in the KSGA's grid box for a presumptive prison term of 32-34-36 months. See K.S.A. 2015 Supp. 21-5706(a); K.S.A. 2018 Supp. 21-6805. The self-contained statute on his domestic battery conviction, a nongrid person felony, provided for a sentence of 90 days to one year in jail and a $1,000 to $7,500 fine. See K.S.A. 2015 Supp. 21-5414(b)(3). Violation of a protective order, a Class A person misdemeanor, carried a sentence of up to one year in jail and a $2,500 fine. See K.S.A. 2015 Supp. 21- 5924(a)(4), (b)(1). The district judge imposed a base sentence of 34 months' prison for the methamphetamine conviction. Fowler received 12 months in jail and a $1,000 fine for the felony domestic battery and 12 months in jail for violation of the protective order. All three sentences were ordered to run concurrent.

COURT OF APPEALS DECISION

The Court of Appeals majority interpreted K.S.A. 2015 Supp. 21-6810(d)(9)'s reference to "the present crime of conviction" in a multiple-conviction case to refer only to the crime designated as "primary." State v. Fowler, 55 Kan. App. 2d 92, Syl. ¶ 5, 408 P.3d 119 (2017). It relied in part on State v. Vontress, 266 Kan. 248, 260, 970 P.2d 42 (1998), disapproved of on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Thus, in the panel majority's view, the district judge did not err by using two of Fowler's prior misdemeanor domestic battery convictions both to calculate his criminal history score for the base methamphetamine conviction and elevate the nonbase domestic battery from a misdemeanor to a felony. Fowler, 55 Kan. App. 2d at 102.

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State v. Fowler

Judge Malone, who had handled Vontress during his service as a district judge, said in dissent that he regarded Vontress as distinct from Fowler's case. And he questioned the majority's fealty to the plain language of K.S.A. 2015 Supp. 21-6810(d)(9):

"The majority would have the statute read: 'Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the primary crime of conviction.' There is no indication that the Legis- lature intended to limit the application of the statute to the 'primary' crime of conviction. Instead, the statute's various limitations on the use of prior convictions to determine criminal history apply to 'the present crime of conviction.' K.S.A. 2015 Supp. 21-6810(d)(9). In Fowler's case, domestic battery is a present crime of conviction; thus, the statute applies in calculating his criminal history score." 55 Kan. App. 2d at 107-08 (Malone, J., dissenting).

For these reasons, Judge Malone would have vacated Fowler's sentences and remanded to the district court. We granted Fowler's petition for review.

DISCUSSION

An illegal sentence may be corrected "at any time while the defendant is serving such sentence." L. 2019, ch. 59, § 15 (eff. May 23, 2019). Cf. K.S.A. 22-3504(1) ("The court may correct an illegal sentence at any time."). "[A]n appellate court has the authority to consider an illegal sentence issue raised for the first time on appeal." State v. Sartin, 310 Kan. 367, Syl. ¶ 2, 446 P.3d 1068 (2019). Whether a sentence is illegal is a question of law subject to unlimited review. Similarly, issues of statutory interpretation are also questions of law subject to unlimited review. 310 Kan. at 369.

Review of Sentencing Provisions

A brief review of the design and structure of criminal sentencing in Kansas will assist in explaining our resolution of this appeal. Under the KSGA, the sentencing guidelines "apply equally to all offenders in all parts of the state" and are "applicable to felony crimes committed on or after July 1, 1993." K.S.A. 2018 Supp. 21-6802(a), (c). Felony convictions are classified as grid, nongrid, or off-grid offenses. See State v. Collins, 303 Kan. 472, 475, 362

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State v. Fowler

P.3d 1098 (2015) ("nongrid" felony domestic battery distinguished from nondrug-grid, drug-grid felonies, their severity levels); K.S.A. 2018 Supp. 21-6806(c), (d) (listing off-grid crimes). Grid crimes are subdivided into nondrug and drug-grid crimes. See K.S.A. 2018 21-6803(k) (defining "grid"). The grids for nondrug and drug crimes are distinct. See K.S.A. 2015 Supp. 21-6804 (grid for nondrug crimes); K.S.A. 2018 Supp. 21-6805 (grid for drug crimes). Each has two axes. "The grid's horizontal axis is the criminal history scale [that] classifies criminal histories." K.S.A. 2015 Supp. 21-6804(c). The vertical axis sets out the continuum of crime severity levels. A "grid block" is "formed by the intersection of the crime severity ranking of a current crime of conviction and an offender's criminal history classification." K.S.A. 2018 Supp. 21-6803(l). The grids define "presumptive punishments for felony convictions, subject to the sentencing court's discretion to enter a departure sentence." K.S.A. 2015 Supp. 21-6804(d). Each grid block sets a presumptive sentencing range and indicates a presumptive disposition of either imprisonment or nonimprisonment. K.S.A. 2015 Supp. 21-6804(f). When sentencing a nondrug crime, the "sentencing court has discretion to sentence at any place within the sentencing range." K.S.A. 2015 Supp. 21-6804(e)(1). In a presumptive imprisonment case, a sentencing judge must "pronounce the complete sentence," which includes the prison sentence, maximum potential good-time credit, and the period of postrelease supervision. K.S.A. 2015 Supp. 21-6804(e)(2). In a presumptive nonprison sentence case, the sentencing judge must pronounce the prison sentence and duration of the nonprison sanction. K.S.A. 2015 Supp. 21-6804(e)(3). Various subsections of K.S.A. 2015 Supp. 21-6804 modify or supplement the general sentencing guidelines for certain nondrug felonies. For example, the sentence for a conviction for aggravated assault of a law enforcement officer that would otherwise fall in grid block 6-H or 6-I "shall be presumed imprisonment." K.S.A. 2015 Supp. 21-6804(g); see also (h) (when firearm used to commit person felony, sentence presumed imprisonment); (j) (sentence for persistent sex offender double maximum duration of presumptive

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State v. Fowler imprisonment term); (k) (certain gang-related felonies carry sentence of presumed imprisonment). The nondrug grid explicitly excludes certain felonies—generally referred to as "nongrid felonies"—that typically have self-contained mandatory sentencing requirements. See K.S.A. 2015 Supp. 21-6804(i). At times, the excluded crimes may be elevated from misdemeanors to felonies after multiple convictions. See, e.g., K.S.A. 2015 Supp. 8- 1567(b)(1)(D), (E) (third, subsequent DUI convictions nonperson felonies rather than misdemeanors). As alluded to above, when Fowler committed the domestic battery at the root of this case, domestic battery was one such excluded crime, and it would be elevated from a misdemeanor to a felony if committed a third time in a five-year period. See K.S.A. 2015 Supp. 21-5414(b)(3). The same is true today. See K.S.A. 2018 Supp. 21-5414(c)(1)(C). Various subsections of K.S.A. 2018 Supp. 21-6805 modify or supplement the general sentencing guidelines for felony drug crimes defined under K.S.A. 2015 Supp. 21-5701 through K.S.A. 2015 Supp. 21-5717 (controlled substances). The drug grid section contains special procedures for certain drug-related offenses, but, because the drug grid applies only to specific drug crimes, there is little overlap between its special sentencing circumstances and those present on the nondrug grid. See K.S.A. 2018 Supp. 21- 6805(e)-(g). The drug grid guidelines outline what the sentencing judge must pronounce from the bench for both presumptive prison and nonprison cases, just as the nondrug grid guidelines do. K.S.A. 2018 Supp. 21-6805(c)(2)-(3). For both the drug grid and the nondrug grid, "criminal history" refers to an offender's criminal record "at the time such offender is sentenced." See K.S.A. 2018 Supp. 21-6803(c) ("criminal history" offender's criminal record "at the time such offender is sentenced"); (d) ("criminal history score" summation of convictions described as criminal history that place offender in category listed on horizontal axis of sentencing grid). The ultimate score assigned depends on a defendant's number of "prior convictions" for adult person and nonperson felonies; person and nonperson misdemeanors; and juvenile person and nonperson felony adjudications. See K.S.A. 2015 Supp. 21-6810(a).

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State v. Fowler

A "prior conviction" is

"any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203, and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case." K.S.A. 2015 Supp. 21-6810(a).

The provision at issue before us today marks a rare exception to inclusion in a defendant's criminal history score: "Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction." K.S.A. 2015 Supp. 21-6810(d)(9). The same substantive provision to prevent double counting continues in effect today. See K.S.A. 2018 Supp. 21-6810(d)(10). But, in general, "all other prior convictions will be considered and scored." K.S.A. 2015 Supp. 21-6810(d)(9). K.S.A. 2018 Supp. 21-6809 assigns a letter for each category of criminal history. And, as alluded to above, K.S.A. 2015 Supp. 21-6811 dictates how to calculate a criminal history score. One of its provisions came into play in this case: K.S.A. 2015 Supp. 21- 6811(a) dictated that every three person misdemeanors committed within three years of the "current crime of conviction" were to be converted into one person felony for criminal history calculation purposes. Severity levels used in classifying nondrug and drug felonies are defined in K.S.A. 2018 Supp. 21-6807 and K.S.A. 2018 Supp. 21-6808, respectively. All of the provisions we reviewed above contemplate sentencing for a single conviction in a single case. K.S.A. 2018 Supp. 21- 6819 contains the procedures for sentencing in a multiple-conviction case such as Fowler's. In a multiple-conviction case, the sentencing judge must "establish a base sentence for the primary crime." K.S.A. 2018 Supp. 21-6819(b)(2). "The primary crime is the crime with the highest crime severity ranking." K.S.A. 2018 Supp. 21-6819(b)(2). If there are multiple crimes with the same severity ranking, the district judge must "designate which crime will serve as the primary

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State v. Fowler crime." K.S.A. 2018 Supp. 21-6819(b)(2). If one or more convictions in the current case are off-grid crimes, those crimes are ignored to determine the appropriate sentences for any grid crimes. K.S.A. 2018 Supp. 21-6819(b)(2). Nongrid crimes that have sentences prescribed by individual statutes also are excluded from grid calculation and thus can never qualify as primary crimes under the KSGA. See K.S.A. 2015 Supp. 21-6804(i). Because the crime severity levels for nondrug-grid and drug- grid crimes differ, special rules apply when a defendant has a current conviction from both categories. If such a situation creates both prison and nonprison presumptions, then the crime that presumes imprisonment qualifies as the primary crime. K.S.A. 2018 Supp. 21-6819(b)(2). When both crimes presume the same disposition, the crime leading to the longest term qualifies as the primary crime. K.S.A. 2018 Supp. 21-6819(b)(2). After determining the primary crime, the "base sentence [for the primary crime] is set using the total criminal history score assigned." K.S.A. 2018 Supp. 21-6819(b)(3). Only a criminal history score of "I," which signifies no criminal history, is used to determine any nonbase sentences. K.S.A. 2018 Supp. 21- 6819(b)(5). A sentencing judge generally may impose concurrent or consecutive sentences in multiple-conviction cases. K.S.A. 2018 Supp. 21-6819(b). The total prison sentence imposed in a case cannot exceed twice the base sentence imposed for the primary crime. K.S.A. 2018 Supp. 21-6819(b)(4).

Prior Cases Dealing with the Double Counting Statute

The double counting provision Fowler relies upon here has been the subject of several previous cases in this court and the Court of Appeals. The first of these was Vontress, the 1998 case over which the Court of Appeals panel majority and Judge Malone tangled. In Vontress, this court interpreted K.S.A. 21-4710(d)(11), the predecessor statute to K.S.A. 2015 Supp. 21-6810(d)(9). The wording of the two statutes is identical but for K.S.A. 21- 4710(d)(11)'s additional exclusion of a prior conviction from

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State v. Fowler criminal history if it enhanced "applicable penalties" for "the present crime of conviction." This difference is of no moment here because Fowler relies on other, common language forbidding counting of prior convictions for criminal history. He argues that his sentence must be vacated as illegal under K.S.A. 2015 Supp. 21-6810(d)(9) because his two prior convictions were used both to calculate criminal history for his current methamphetamine possession crime and to "elevate the classification [of his current domestic battery crime] from misdemeanor to felony." Compare K.S.A. 2015 Supp. 21-6810(d)(9) ("elevate the classification from misdemeanor to felony") with K.S.A. 21-4710(d)(11) ("elevate the classification from misdemeanor to felony"). Fowler's focused argument avoids any need to distinguish Vontress on statutory language difference alone. A jury convicted defendant Damon L. Vontress of first-degree murder, aggravated robbery, aggravated battery, and criminal possession of a firearm. The district judge sentenced Vontress to a hard-40 life sentence for the off-grid first-degree murder conviction. For the grid crimes, the district judge used Vontress' aggravated robbery conviction as the primary crime to which a base sentence must be assigned using full criminal history. The calculation of Vontress' criminal history score included a prior person felony conviction that the State had also relied upon to prove an element of Vontress' current criminal possession of a firearm conviction. On appeal, Vontress argued that use of the prior conviction in both ways in a single case violated the double counting prohibition of K.S.A. 21-4710(d)(11). 266 Kan. at 259. The Vontress court concluded after brief discussion that Von- tress' sentence did not conflict with the statute:

"In cases of multiple convictions arising out of the same complaint, the sentencing court identifies the defendant's primary crime, i.e., the crime with the highest severity level, and computes the defendant's base sentence. The defendant's full criminal history is applied to the primary crime to establish the defendant's base sentence. K.S.A. 21-4720(3). An off-grid crime shall not be used as the primary crime in determining the base sentence. K.S.A. 21-4720(2). The criminal history score shall not be applied to nonbase crimes. K.S.A. 21-4720(5). "The exclusion in K.S.A. 21-4710(d)(11) does not pertain to any conviction where the prior felony does not provide an element of the offense or in some manner affect the penalty applicable to the conviction of the crime. Vontress' criminal history was not applied to his conviction for criminal possession of a

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State v. Fowler firearm. Aggravated robbery was the primary crime for purposes of application of Vontress' criminal history score. The firearm conviction was not Vontress' primary crime. As a nonbase crime, a criminal history score of I was applied to the firearm conviction. Therefore, the prior felony was used as an element of the status crime and not used to establish the penalty for the firearm conviction. The sentencing court properly applied the felony conviction to that crime." 266 Kan. at 260.

The Court of Appeals was next to address the double counting statute, particularly its intersection with a sentencing enhancement provision for persistent sex offenders. In State v. Taylor, 27 Kan. App. 2d 62, 998 P.2d 123 (2000), superseded by statute as stated in State v. Pearce, 51 Kan. App. 2d 116, 342 P.3d 963 (2015) (noting post-Taylor statutory amendment removing "applicable penalties"), defendant Allen D. Taylor pleaded no contest to two counts of aggravated indecent liberties with a child. Taylor's full criminal history, used to calculate his base sentence, included a prior conviction for indecent liberties with a child and three nonperson felonies. And the existence of the prior indecent liberties conviction qualified Taylor as a persistent sex offender, which doubled the length of the prison term for any new sex crime. The Court of Appeals held that K.S.A. 21-4710(d)(11) "flatly prohibits use of prior convictions to determine the criminal history category 'if they enhance the severity level or applicable penalties,'" and "[t]here can be no doubt that classification as a persistent sex offender enhances the applicable penalties." 27 Kan. App. 2d at 65. Indeed, "the classification of a person as a persistent sex offender is relevant only with respect to sentencing and is for the purpose of punishment, so the sentencing guidelines provision of K.S.A. 21-4710(d)(11) is applicable. . . . [T]he prior . . . conviction is covered by the literal language of the statutory prohibition against consideration of a '[p]rior conviction' that enhances the severity level or applicable penalty." 27 Kan. App. 2d at 68. Taylor's sentence was vacated and the case remanded for resentencing as a result. 27 Kan. App. 2d at 68. State v. Zabrinas, 271 Kan. 422, 24 P.3d 77 (2001), came next. In that case, this court examined the sentencing of defendant David Zabrinas, which mirrored that at issue in Taylor. Zabrinas had been convicted of one count of sexual exploitation of a child,

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State v. Fowler and his prior conviction for aggravated indecent solicitation of a child was used by the district judge in two ways—to double his sentence under the persistent sex offender provision and to count as one of two prior convictions that made his criminal history score a "B." Zabrinas invoked K.S.A. 21-4710(d)(11) to attack his sentence on appeal, and this court approved and applied the "well- reasoned" decision in Taylor to grant relief. Zabrinas' sentence was vacated and his case remanded for resentencing, with this court noting that he should continue to be treated as a persistent sex offender but that the prior aggravated indecent solicitation of a child should be dropped from the criminal history used to arrive at his base sentence. 271 Kan. at 443-44. The next case, State v. Moore, 274 Kan. 639, 55 P.3d 903 (2002), trod the same path as Taylor and Zabrinas, although it did so on the court's own initiative. 274 Kan. at 649 (problem not raised in parties' briefs). The same prior sex offense had been used to classify defendant William C. Moore as a persistent sex offender and to calculate his full criminal history score used to arrive at his base sentence. As in Taylor and Zabrinas, Moore's sentence was vacated and his case remanded for resentencing. 274 Kan. at 651. This court returned to the Vontress template in State v. Davis, 275 Kan. 107, 61 P.3d 701 (2003). In that case, defendant Quincy B. Davis was convicted of first- degree premeditated murder, aggravated kidnapping, aggravated burglary, criminal possession of a firearm, and aggravated robbery. His prior conviction for aggravated battery was used to calculate his criminal history score underlying the base sentence for his current primary crime of aggravated kidnapping and as an element of his current criminal possession conviction. Following Vontress, this court rejected Davis' K.S.A. 21-4710(d)(11)-based challenge to these two uses in his multiple-conviction case. 275 Kan. at 125. The Vontress template reappeared in the reasoning of the Court of Appeals in two later unpublished cases. These cases also involved defendants who unsuccessfully challenged use of a particular prior conviction to calculate criminal history for their current primary crime and its associated base sentence on the one hand and prove

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State v. Fowler a necessary element of a current criminal possession of a firearm charge on the other. See State v. Berkstresser, No. 94,131, 2007 WL 518832, at *6 (Kan. App. 2007); State v. Loggins, No. 90,171, 2004 WL 1086970, at *5 (Kan. App. 2004). The legal principles arising from the final Kansas case before Fowler's to deal with interpretation of the double counting statute reflect the Taylor/Zabrinas/Moore mold rather than the Vontress template. In that case, State v. Smith, 299 Kan. 962, 327 P.3d 441 (2014), a jury convicted defendant Francis Smith of two counts of aggravated indecent liberties with a child and two counts of indecent liberties with a child. 299 Kan. at 963-64. At sentencing, Smith's criminal history included "four prior sex offense convictions: two for aggravated indecent liberties with a child; one for aggravated criminal sodomy; and one for rape." 299 Kan. at 982. Under Jessica's Law, the sentencing judge elevated Smith's two current aggravated indecent liberties convictions from hard 25 to hard 40 sentences based on the existence of two, unspecified prior convictions. The judge also used at least three of Smith's prior crimes to arrive at a criminal history score of "A" to sentence Smith for his primary grid crime. A criminal history score of "A" results from "three or more" prior adult person felony convictions. Finally, because Smith also qualified as a persistent sex offender based on his prior convictions, his base grid sentence was doubled. 299 Kan. at 983. On appeal, Smith challenged his sentence on Count III, his primary grid crime, under K.S.A. 21-4710(d)(11). The State conceded the sentencing judge had erred, and this court agreed:

"[Smith] argues the process used to arrive at the sentences [for the offgrid convictions under Count I and Count II enhanced by Jessica's Law] is relevant to his sentencing challenge on Count III because using two prior convictions to impose them precluded the court from using those priors again when calculating Smith's criminal history score on Count III. Smith is correct. Imposing the hard 40 sentences left only two prior convictions available for calculating the sentence for Count III. "One of Smith's remaining prior convictions was used to qualify him as a persistent sex offender, requiring the district court to double his gridblock sentences on both [current] indecent liberties with a child convictions under K.S.A. 21-4704(j). Using that prior conviction to classify Smith as a persistent sex offender precluded using it to calculate Smith's criminal history score. See State v.

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State v. Fowler

Moore, 274 Kan. 639, 651, 55 P.3d 903 (2002) (district court erred in failing to remove prior conviction from criminal history after using it to classify defendant as a persistent sex offender). So Smith had only one prior adult person felony conviction available for use in calculating his criminal history score when sentencing him for the indecent liberties with a child conviction in Count III." Smith, 299 Kan. at 983.

The Smith opinion did not cite any previous case to support the first of its conclusions quoted above: that the two prior convictions used to support the Jessica's Law enhancements could not be reused as part of Smith's criminal history underlying his sentence for the current primary grid crime. But, in disallowing the practice under K.S.A. 21-4710(d)(11), it appeared to place it in the category of decisions to which Taylor, Zabrinas, and Moore belong rather than under the Vontress template. In other words, a Jessica's Law enhancement from a hard 25 sentence to a hard 40 sentence, despite its off-grid, extra-KSGA character, was viewed in the same way as a statutorily required doubling of a base sentence for a persistent sex offender, rather than as an element of a nonbase status crime such as criminal possession of a firearm, also independent of the KSGA sentencing grid. The second conclusion from the Smith opinion quoted above followed directly from the cited Moore opinion, and from its pre- decessors, Taylor and Zabrinas. Once a prior conviction was used to qualify Smith as a persistent sex offender, that same prior could not be used again in his criminal history underlying the base sentence for his primary crime. See Moore, 274 Kan. at 651; Zabri- nas, 271 Kan. at 443-44; Taylor, 27 Kan. App. 2d at 68. Thus Smith's sentence for Count III violated K.S.A. 21- 4710(d)(11) in two ways, making it illegal and necessitating va- cation and remand of the case for resentencing on that count. That resentencing would have to depend on a criminal history counting only one prior conviction. Smith, 299 Kan. at 984-85. Two of the four prior convictions would be "used up" by his Jessica's Law enhancement, and a third by his persistent sex offender classification.

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State v. Fowler

Answering the Question at Hand

Although the previous cases on double-counting that we have reviewed have settled certain issues and may have implied resolutions to others, they have not explicitly addressed the question squarely presented in this case: To which crime does K.S.A. 2015 Supp. 21-6810(d)(9)'s phrase "the present crime of conviction" refer? The Court of Appeals panel majority concluded "that where a defendant is being sentenced for multiple felony convictions, the term 'present crime of conviction' . . . refers only to the primary crime referred to in K.S.A. 2015 Supp. 21-6819(b)(2)" for which a base grid sentence must be established. Fowler, 55 Kan. App. 2d at 101. Judge Malone questioned whether this reading was demanded by Vontress, and he criticized the majority's conclusion as "contrary to the plain language of K.S.A. 2015 Supp. 21- 6810(d)(9)." 55 Kan. App. 2d at 106 (Malone, J., dissenting). We agree with Judge Malone in certain respects. Vontress is not on all fours factually or legally with Fowler's case. Although one of the uses of the prior crime in Vontress was as a component of criminal history for determination of the base sentence on a current primary crime, which matches this case, the other use was as proof of an element of a current criminal possession of a firearm, which does not match this case. The second use of the prior crimes in Fowler's case was as elevation to make his current domestic battery a felony rather than a misdemeanor. But the observation of these distinctions is no more persuasive than our additional note that Fowler's case is even more distinct from the Taylor/Zabrinas/Moore line. All of those decisions granted relief to defendants when a sentencing judge used one or more prior convictions in two ways that affected the sentence on the primary crime—once by labeling the defendant a persistent sex offender whose prison term would be doubled and once by inclusion in the criminal history that would determine an applicable base grid sentence. Smith, for its part, is also distinct from Fowler's case in the additional gloss it added to the Taylor/Zabri- nas/Moore rulings: a sentencing judge also is not permitted to enhance a Jessica's Law sentence based on a prior conviction used

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State v. Fowler to determine criminal history underlying a base sentence for a current primary crime. The important point, however, to take from all of the prior cases is not what is dissimilar but what is similar. All of the cases placed analytical emphasis under the double counting statute on what was done by the sentencing judge vis-a-vis the current primary grid crime. Without ruling explicitly that it must always be so, several lineups of justices on this court and judges on the Court of Appeals have apparently considered it obvious that it must always be so. Assumption cannot substitute for analysis, of course, but its recurrence over many years and many cases at least favors the panel majority over Judge Malone. That said, we are sympathetic with Judge Malone's insistence that the plain language of K.S.A. 2015 Supp. 21-6810(d)(9) can answer what the Legislature meant when it wrote "the present crime of conviction." This court has what now qualifies as a longstanding express affection for relying on plain legislative language whenever possible. See, e.g., State v. Gensler, 308 Kan. 674, 677, 423 P.3d 488 (2018) (legislative intent governs statutory interpretation; reliance on plain, unambiguous language "the best and only safe rule" for determining intent; only if language ambiguous does court move to statutory construction). However, Judge Malone errs in characterizing the language he relies upon as plain; in fact, it is not even present. Judge Malone treats the "the" before "crime of conviction" as though it is an "a" or an "any." "The" is singular and specific. See Webster's New World Col- lege Dictionary 1501 (5th ed. 2014) ("that [one] being spoken of or already mentioned"). "A" is singular but nonspecific. See Web- ster's New World College Dictionary 1 (5th ed. 2014) ("a2" "1 one; one sort of . . . 2 each; any one"). "Any" can precede a singular or a plural noun, but it is nonspecific as well. See Webster's New World College Dictionary 64 (5th ed. 2014) ("one, no matter which, of more than two"). The placement of the word "the" before "present crime of conviction" must mean an individual, particular crime of conviction, not merely "a" or "any" present crime of conviction. Certainly, the Legislature could have been more clear by talking about the "primary grid" present crime of conviction or the "base" sentence ultimately to be assigned to it, but the

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State v. Fowler absence of such explicit guidance does not eliminate the meanings those words would convey from among the Legislature's inten- tions. All we can take from its shorthand choice of "the" as the introductory article in the phrase, the actual plain language of the statute, is partial silence on the question before us. Partial silence in this situation equates to ambiguity. Widening our lens as we must when ambiguity forces us to march from statutory interpretation to construction, we believe the final answer to the question posed by this case can be answered through examination of the Legislature's overall crafting of the KSGA. It is evident from that broader perspective that the Legislature generally designed and drafted the KSGA using a framework that required calculation of sentences for individual convictions. See, e.g., K.S.A. 2015 Supp. 21-6804(d) ("The appropriate punishment for a felony conviction should depend on the severity of the crime of conviction when compared to all other crimes and the offender's criminal history." [Emphasis added.]); K.S.A. 2015 Supp. 21- 6804(f) ("Each grid block states the presumptive sentencing range for an offender whose crime of conviction and criminal history place such offender in that grid block." [Emphasis added.]); K.S.A. 2018 Supp. 21-6806 (defining off-grid crimes requiring life sentences); K.S.A. 2015 Supp. 21-6810(a) ("prior conviction" any conviction, "other than another count in the current case," which occurred before sentencing in current case). K.S.A. 2018 Supp. 21-6819 is the exception to this design im- perative, dealing as it does with multiple-conviction cases. But it does not alter the Legislature's overall structure: The KSGA is based on an assumption that sentences are calculated for each conviction, independent of other convictions. For any grid crime, the sentence for a particular conviction depends on the defendant's criminal history score for that conviction and the severity level of that crime. See K.S.A. 2015 Supp. 21-6811(i) (requiring certain prior convictions to be scored as person felonies based on identity of "current crime of conviction"). Even in the portion of the KSGA governing multiple-conviction cases, the sentence for each conviction still depends on the defendant's criminal history score for that conviction and the severity level for that crime. If the crime

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State v. Fowler is the primary grid crime, the criminal history score used to calculate the sentence reflects the defendant's accurate criminal past; if the crime is not the primary crime, a criminal history score of "I" is assigned, regardless of its actual accuracy. In other words, even in multiple-conviction cases, the Legislature chose to treat each conviction as discrete for sentencing purposes. Once each crime has a corresponding sentence systematically assigned to it, then the district judge makes a call on their concurrent or consecutive service. See K.S.A. 2018 Supp. 21-6819. With the overall design and structure of the KSGA as our guideposts, we conclude that including Fowler's prior domestic battery convictions in his criminal history calculation for his primary grid conviction did not violate the double-counting provision of K.S.A. 2015 Supp. 21-6810(d)(9). Fowler's prior domestic battery convictions did not elevate his possession of methamphetamine conviction's classification from misdemeanor to felony. Nor did they enhance his possession conviction's severity level or constitute an element of that crime. For that discrete conviction, the district judge used Fowler's prior domestic battery convictions once each as a part of his criminal history. The judge's use of the same prior convictions to elevate a different current crime of Fowler's, the domestic battery, from a misdemeanor to a felony was also discrete and permissible. Indeed, as the Court of Appeals majority realized, Fowler's sentencing on the felony domestic battery was not governed by the grid system of the KSGA at all. See K.S.A. 2015 Supp. 21-5414(b)(3); 2015 Supp. 21-6804(i) (domestic battery sentence governed by mandatory sentencing requirements of domestic battery statute). Finally, we note that our ultimate construction is not merely consistent with legislative design. It also is consistent with the Legislature's stated policy goals in enacting the KSGA: uni- formity in sentencing. See State v. Brown, 305 Kan. 674, 697, 387 P.3d 835 (2017). To adopt Fowler's position and hold that his convictions must be excluded from his felony drug conviction's criminal history would mean that a defendant in his same position, but charged in separate cases, would be subject to a longer sentence.

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State v. Fowler

CONCLUSION

For the reasons outlined above, we affirm the Court of Ap- peals decision affirming Fowler's sentences.

1 MICHAEL J. MALONE, District Judge Retired, assigned.

* * *

ROSEN, J., concurring: I agree with the majority's conclusion that including Fowler's prior domestic battery convictions in his criminal history calculation for his primary grid conviction did not violate the double-counting provision of K.S.A. 2015 Supp. 21- 6810(d)(9). I write separately to emphasize that the cause of the confusion that resulted in this appeal—the lack of an accurate criminal history determination prior to the entry of the plea—and the necessity of having two appellate courts address this sentencing issue is completely avoidable. I will not dwell on the point; I will simply refer to my concurring opinion in State v. Garcia, 295 Kan. 53, 64, 283 P.3d 165 (2012), and reiterate that, consistent with Kansas law and the heightened constitutional protections demanded in criminal proceedings, we should require a predeter- mined, accurate criminal history to be part of plea negotiations. Not only would this give Fowler and similarly situated defendants the knowledge necessary to effectuate a knowing, voluntary, and intelligent waiver of the right to trial, it would recognize the sig- nificance that criminal history plays in the sentencing scheme and would avoid the problems associated with the criminal history crapshoot currently employed in most plea proceedings. In most plea negotiation scenarios, an understanding of the presumptive sentence resulting from the acceptance of a plea is an essential component of reaching an agreement. This was especially true in this case. Fowler and the State reached a plea agreement, under which Fowler pleaded guilty to felony possession of methamphetamine, felony domestic battery, and violation of a protective order. The

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 116,803 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. Johnson.

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State v. Fowler agreement was based on the parties' mutual belief that Fowler had a criminal history score of "E" making his presumptive sentence probation under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. However, the presentence investigation report, ordered and prepared post-plea, concluded Fowler had a criminal history score of "B" instead of the "E" that the parties believed to be controlling upon entry of the plea. This resulted in not only changing the statutory presumptive disposition from probation to prison but nearly tripled the duration of an agreed upon controlling sentence from 12 months to 34 months. Instead of facing a sentencing that all parties anticipated would be in a presumptive probation posture, Fowler was now forced to file a motion for dispositional departure based on the discrepancy between his anticipated and actual criminal history. At sentencing, the State even joined Fowler's request for a dispositional departure because that was the "spirit" of the plea agreement. The district judge denied the motion and imposed the 34- month presumptive prison sentence. My point in Garcia was and still continues to be that there is simply no reason to not have an accurate criminal score calculated before the plea is accepted. This would provide to all the parties involved the ability to knowingly negotiate the terms of a plea and intelligently consider all of the sentencing possibilities and rami- fications that result from the convictions of the plea. We simply should not continue to legitimize a plea negotiation process that undermines the presumption of fairness and dignity that serves to protect our liberty interests.

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State v. Newman

No. 118,608

STATE OF KANSAS, Appellee, v. COTY RYLAN NEWMAN, Appellant.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Motion to Withdraw Guility Plea—Appellate Re- view. 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.

2. CRIMINAL LAW—Sentencing—No Lifetime Postrelease Supervision Im- posed for Off-grid Indeterminate Life Sentence. A sentencing court has no authority to impose lifetime postrelease supervision on an off-grid, indeterminate life sentence.

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed February 14, 2020. Affirmed in part and vacated in part.

Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Coty Newman pleaded guilty to first-degree felony murder and attempted second-degree intentional murder. Be- fore sentencing, Newman moved to withdraw those pleas. The district court denied his motions and imposed a life sentence for the first-degree murder conviction and a consecutive 59 months' imprisonment for the second-degree murder conviction. The district court also ordered lifetime postrelease supervision for the first- degree murder conviction and 36 months of postrelease supervision for the second-degree murder conviction. Newman appeals the denials of his motions to withdraw his pleas and the imposition of lifetime supervision. We affirm the denials of his motions but vacate the lifetime postrelease supervision.

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State v. Newman

FACTUAL AND PROCEDURAL BACKGROUND

On October 27, 2010, the State charged Coty Newman with first-degree felony murder; alternative counts of attempted second-degree intentional murder or aggravated battery; attempt to distribute marijuana; and conspiracy to distribute marijuana. The State later amended the complaint to add first-degree intentional murder as an alternative to first-degree felony murder. Newman agreed to plead guilty to first-degree felony murder and attempted second-degree intentional murder and, in exchange, the State agreed to dismiss the alternative and remaining counts. The parties agreed to recommend a life sentence for the first-degree murder charge and a consecutive 59 months' imprisonment for the second-degree murder charge. They further agreed that Newman would not be eligible for parole until he served 20 years and 59 months in prison and that neither party would request a departure sentence. On March 22, 2013, the district court held a plea hearing. Newman pleaded guilty to first-degree felony murder and attempted second-degree intentional murder. The district court found that Newman voluntarily entered into the agreement and accepted his pleas. On July 18, 2013, Newman filed a motion to withdraw his pleas. He argued that the court should allow the withdrawal for two reasons: his mother had been hospitalized during the plea hearing, which caused him to experience extreme physical and emotional distress; and he had newly discovered evidence that would exonerate him. The State responded to this motion, arguing that Newman had not indicated he was distressed during the hearing and that the newly discovered evidence was not credible. At a hearing on Newman's motion, Newman's mother testified that she had been hospitalized on March 21, 2013, due to compli- cations related to diabetes and had spent a day and a half in the intensive care unit. She also testified that she and Newman discussed over the phone ways to withdraw his plea. The district court admitted State exhibits that both parties stipulated represented recorded jail calls between Newman and his mother.

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State v. Newman

James Martin also testified at the hearing. He stated that he met Newman while incarcerated at the Ellsworth Correctional Fa- cility while Newman was there as a result of the charges in this case. Martin stated that he had been present at the time of the alleged killing and that Newman, while present, had not shot anyone. After this hearing, the State filed a supplemental response and motion to strike Martin's testimony. In this motion, the State alleged that Martin had been incarcerated at the time of the alleged crimes and, consequently, could not have been a witness to those crimes. At a second hearing, a records clerk with the Ellsworth Correctional Facility testified that a man named James Martin with the same date of birth, social security number, and DOC number as the James Martin who testified had been in custody at the time of the alleged crimes. On October 17, 2013, the district court denied Newman's motion to withdraw his pleas. On October 25, 2013, Newman filed a pro se "Motion to Va- cate Plea Bargain Due to Ineffective Assistance of Counsel." At a hearing on this motion, Newman testified that Jon Whit- ton had been his counsel at the time he was considering a plea and that he had told Whitton on the day of the plea hearing that he did not want to plead guilty. Newman stated that Whitton had informed him he could plead guilty and then "pull it back" if he "g[o]t cold feet" and wanted to go to trial. Newman said that he would not have pleaded guilty if he had known he could not withdraw the plea for any reason. Newman also testified that, before pleading, he told Whitton about some possible exculpatory witnesses and Whitton told him he would look into them after he entered his plea. During the State's cross-examination of Newman, Newman testified that he remembered telling his mother on a phone call that, if his original motion to withdraw his plea did not work, he was going to have to claim his counsel had been ineffective. Newman's wife also testified at the hearing. She stated that she had not wanted Newman to plead guilty but Whitton had in-

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State v. Newman formed her and Newman on the day of the plea hearing that New- man only had an hour to decide whether to accept the plea and could later withdraw it. Whitton also testified at the hearing. He stated that he never told Newman he could withdraw his plea based on "cold feet." He informed Newman that it is possible to withdraw a plea but it very rarely happens and that Newman should not enter a plea based upon an understanding that he could withdraw it at a later time. Newman asked for an example of when a defendant can withdraw a plea, and Whitton told him a court will permit the withdrawal based on ineffective assistance of counsel or newly discovered evidence. Whitton also stated that he told Newman it is much more difficult to withdraw a plea after sentencing. Whitton testified that he did not believe Newman mentioned any exculpatory witnesses during this conversation with whom Whitton had not already spoken. On June 10, 2014, the district court denied Newman's second motion to withdraw his pleas. On July 23, 2014, the district court sentenced Newman to life in prison with no chance of parole for 20 years for the first-degree murder conviction and 59 months in prison for the attempted second-degree murder conviction, to be served consecutively. The court also imposed lifetime postrelease supervision for the first- degree murder conviction and 36 months of postrelease supervision for the second-degree murder conviction. Newman appealed the denials of his motions to withdraw his pleas and the district court's imposition of lifetime postrelease supervision to this court.

ANALYSIS

Withdrawal of pleas

Newman argues that the district court erred when it denied his motions to withdraw his pleas. A district court may allow a defendant to withdraw a guilty plea for good cause any time before sentencing. K.S.A. 2018 Supp. 22-3210(d)(1). In determining whether the defendant has shown good cause, the court generally considers the following

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State v. Newman three "benchmark" factors: "(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made." State v. Edwards, 309 Kan. 830, 836, 440 P.3d 557 (2019). When reviewing the district court's consideration of such a motion, we will reverse the lower court only for an abuse of discretion. We will not reweigh evidence or reassess witness credibility. Edwards, 309 Kan. at 836. First, Newman argues that the district court abused its discretion when it concluded that he had not shown good cause to withdraw his plea based on his claims of emotional distress. Newman insists that the stress and pressure caused by his mother's health condition and pressure from his attorney to plead guilty "combined to overwhelm him" and rendered his plea involuntary. In its ruling, the district court found that Newman had probably been under "some significant pressure at the time of the plea hearing because trial was fast approaching," but that this pressure was "inevitable." The court also found that Newman had assured the court several times that "he was able to think clearly, was able to understand the proceedings, and had taken enough time to consider whether he wanted to enter a plea of guilt." The court also found that "[a]t no time did [Newman] mention any tension caused by his mother's medical condition" and that nothing in the recorded calls suggested that Newman was "nervous, tense, or in any way upset at the time of the plea because of his mother's condition or hospitalization." Based on these findings, the district court concluded that Newman had failed to show that he was misled, coerced, mistreated, or unfairly taken advantage of. The district court also found that Newman had an extensive plea hearing, his mental health had not been questioned, and he had not raised any new issues. Consequently, the court concluded that Newman's plea was fairly and understandingly made. Newman has offered no authority suggesting that the district court abused its discretion when it concluded that neither his mother's hospitalization nor the pressures of impending trial led to

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State v. Newman a coerced, misunderstood, or otherwise unfair plea. He simply disagrees with the district court's assessment of the evidence. We will not reweigh that evidence. We affirm the district court's decision. Next, Newman argues that the district court erred when it denied his motion because his counsel was ineffective. Newman avers that his counsel told him he could withdraw his plea if he decided he wanted to go to trial and that the evidence does not support Whitton's testimony that he did not make this statement. In regard to this claim, the district court found that Whitton's testimony was more credible than Newman's, and, consequently, that Whitton had not informed Newman he could withdraw his plea if he had second thoughts. Accordingly, the court concluded that Newman had failed to show good cause to withdraw his plea based on ineffective assistance of counsel. Newman acknowledges that we defer to the district court's credibility determinations but insists we cannot do so here because the evidence is more supportive of his version of events. As we noted above, we will not reassess the credibility of evidence. The district court concluded that Whitton was more credible than Newman and we defer to that finding. We conclude the district court did not abuse its discretion when it denied Newman's motions to withdraw his pleas.

Lifetime Postrelease Supervision

The parties agree that the district court erred when it sentenced Newman to lifetime postrelease supervision on the first-degree murder conviction. They are correct. "'[A] sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.'" State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012). Newman received an off- grid, indeterminate life sentence for his first-degree murder conviction. See K.S.A. 21-4706(c). Consequently, he becomes eligible for parole after serving 20 years of that sentence. K.S.A. 2010 Supp. 22-3717(b)(2); K.S.A. 21-4706; K.S.A. 21-3401; see also State v. Johnson, 309 Kan. 992, 997-98, 441 P.3d 1036 (2019). The district court had no authority to impose lifetime postrelease supervision. Accordingly, we vacate the order for lifetime postrelease supervision.

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State v. Newman

CONCLUSION

The district court's decision denying the motions to withdraw Newman's pleas is affirmed. The portion of the district court's sentencing order imposing lifetime postrelease supervision is vacated.

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. 118,608 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. 118,608 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.

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State v Peterson

No. 119,314

STATE OF KANSAS, Appellee, V. CEDRIC YWAIN PETERSON, Appellant.

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SYLLABUS BY THE COURT

CRIMINAL LAW—Sentencing—Motion to Correct Illegal Sentence. A motion to correct an illegal sentence cannot raise claims that a sentence violates a constitutional provision.

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed February 14, 2020. Affirmed.

Angela M. Davidson, of Davidson Appellate Law, of Lawrence, was on the brief for appellant.

Michelle L. Brown, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Cedric Ywain Peterson pleaded no contest in 2007 to the first-degree murder of his wife, Rachelle. The district court judge sentenced Peterson to life imprisonment without the possibility of parole for 25 years, what is known as a "hard 25." In July 2017, Peterson filed a motion to correct an illegal sentence, arguing that his hard 25 was disproportionate under federal and state constitutional bans on cruel and unusual punishment. He also argued that the district judge erred by imposing lifetime postrelease supervision. The district judge agreed that Peterson should not be subject to lifetime postrelease supervision and issued a nunc pro tunc order amending Peterson's journal entry of sentencing. The district judge rejected Peterson's constitutional challenge to the hard 25. Peterson now appeals to this court, continuing to challenge his hard 25 as a violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. He contends that the sentence is "grossly disproportionate" because he had no previous criminal history and entered a no contest plea.

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State v. Peterson

This court will not consider the merits of Peterson's constitutional arguments, because a motion to correct an illegal sentence is an improper vehicle for them. "[T]his court has repeatedly held a motion to correct an illegal sentence . . . cannot raise claims that [a] sentence violates a constitutional provision." State v. Donahue, 309 Kan. 265, 267, 434 P.3d 230 (2019); see also State v. Bryant, 310 Kan. 920, 922, 453 P.3d 279 (2019); State v. Moncla, 301 Kan. 549, 553-54, 343 P.3d 1161 (2015).

Affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 119,314 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 Gray

No. 117,747

STATE OF KANSAS, Appellee, v. MARVIN L. GRAY, Appellant.

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SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Exception to Preservation Rule—Appellate Re- view. 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.

2. TRIAL—Jury Instructions—Presumption Jurors Follow Instructions. Kan- sas courts presume jury members follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed February 28, 2020. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Sam Schirer, of the same office, 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

ROSEN, J.: A jury convicted Marvin Gray of first-degree premeditated murder, rape, and aggravated burglary. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2015, Michael Rolle was working in Dodge City. Sometime around midnight, he spoke on the telephone with his girlfriend, C.R., who lived in Wichita. Rolle then spent the night in his Dodge City office. Early the next morning, Rolle contacted C.R. by phone but did not hear a response. He texted her around 5:55 a.m. and again received no response. Rolle continued with his work day before eventually leaving and driving to Wichita. When Rolle arrived in Wichita, he went directly to C.R.'s house. Upon pulling up in C.R.'s driveway, Rolle noticed that one of the windows on the house was cracked. When he knocked on the door, C.R.'s three-year-old daughter, M., said through the door that it was locked. M. unlocked the door and Rolle entered the

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State v. Gray house. M. told Rolle that her mother was in the bathtub. When Rolle reached the bathroom, C.R. was leaning forward in the bathtub, unresponsive and unclothed from the waist down. Rolle grabbed C.R. by the shoulder and her body floated up in the water. Rolle immediately called the police. Police officer Jared Henry was on duty in Wichita on the evening of June 25. At 6:33 p.m., he received a call from dispatch about a stabbing at C.R.'s residence. He and his partner responded to the scene. Henry observed C.R. lying on her back in the bathtub in approximately 6 inches of dark-colored water with her knees up to her chest. After clearing the house, Henry interviewed Rolle. At trial, Henry would describe Rolle as "visibly upset" and "very forthcoming." Officers executed a search warrant at C.R.'s residence the same night. They noticed a section of glass missing from one of the windows and glass fragments below the window inside and outside of the house. The blinds in the window were askew. There was a chair against the wall next to the window, and there appeared to be spots of blood on the inside of the blinds and on the chair. In the bathroom, officers observed disturbed bathmats in front of the bathtub, hygiene products, toys, and clothes on the floor, and blood along the edge of the bathtub and the sink counter. C.R. was lying in the bathtub in water that appeared to be mixed with blood. There was a chemical odor in the air. In M.'s room, officers found a towel with blood on it, a pair of women's underwear, and a pair of women's shorts. The shorts smelled of urine and had blood stains on them. Officers found a child's blanket with blood on it on the living room sofa. Chemical tests indicated that there was trace blood on the bathtub, throughout the bathroom, outside of the bathroom, through the hallways, and in M.'s room. There was evidence someone had cleaned blood from one of the hallways. Dr. Timothy Gorrill performed an autopsy on C.R. The autopsy revealed 37 stab wounds and signs of asphyxiation. Dr. Gor- rill would later testify that the cause of death was the stab wounds, that the manner of death was homicide, and that the asphyxiation, which may have been caused by strangling, occurred when C.R.

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State v Gray was still alive. A toxicology report indicated that C.R. had methamphetamine in her body when she died. The toxicology report was negative for alcohol and cocaine. Police began interviewing C.R.'s family and friends immediately after discovering her death. A specialist trained in interviewing children spoke with M. Although it is possible she witnessed her mother's murder, M. could not provide any information regarding C.R.'s death. Rolle reported being outside of Sedgwick County for 24 hours before traveling to Wichita on June 25. Police were able to verify his whereabouts through witnesses and video surveillance and consequently ruled Rolle out as a suspect. Upon checking C.R.'s phone records, police learned that Gray had been in contact with C.R. by phone on June 24. Police interviewed Gray at a residence in Wichita on the night of June 26. Gray told officers that he and C.R. had gone shopping at a mall on the evening of June 24. After they went shopping, the two went to a friend's house located on Cottonwood Street, drank alcohol and did cocaine, and then had vaginal and anal intercourse in an alleyway outside by the car. Gray told officers that C.R. then went home, that he stayed at the house on Cottonwood, and that he did not see C.R. again. Officers photographed a cut on Gray's hand, which Gray described as a work injury. Surveillance cameras at the mall confirmed that C.R. and Gray had gone shopping together in the evening on June 24. But further evidence disproved other aspects of Gray's story. Video surveillance from a car dealership near the Cottonwood house revealed that Gray and C.R. never had sex in an alleyway by the Cottonwood house. The video also revealed that Gray left the Cot- tonwood house on foot around 1:30 a.m. on June 25 and returned on foot around 8 a.m. the same day. Cell phone records showed Gray's cellphone in the area of C.R.'s residence around 4:49 a.m. Forensic testing eventually confirmed that Gray had been in C.R.'s residence. It indicated that the blood on the window blinds and the chair by the window, some of the blood on the shorts, and some of the blood in the bathroom came from Gray. Testing also revealed Gray's semen on the inside and outside of the underwear found in M.'s room and on a vaginal swab taken from C.R.'s body.

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State v. Gray

Gray's DNA was identified on some of the bathroom toiletry bot- tles. The testing also indicated that the blood from the blanket, the living room floor, the outside of the underwear, the towel, M.'s room, and the rest of the blood on the shorts and in the bathroom came from C.R. Forensic analysis revealed Gray's handprints and fingerprints on the outside of the broken window. After the evidence discredited parts of Gray's story, officers interviewed him again at the police station. During this interview, Gray relayed a story that was different from the one he originally provided. Notably, Gray informed officers that he had been at C.R.'s house early in the morning on June 25 and that they had consensual vaginal and anal sex in the bathroom at her house. This interview was eventually played for the jury. Based on the compiled evidence and his new statement, the State charged Gray with premeditated first-degree murder, rape, aggravated criminal sodomy, and aggravated burglary with the intent to commit a sexually motivated crime. In a pretrial motion, the State asked the court to admit under K.S.A. 60-455 evidence that Gray had committed three prior attempted or completed rape offenses in 2006, 2010, and 2013. Gray objected to the admission of this evidence. The district court denied the State's motion with respect to the 2006 evidence but granted the motion as it related to the 2010 and 2013 evidence. At trial, the State offered evidence of only the 2013 incident. A woman testified that Gray had strangled and raped her in 2013. The sexual assault nurse who examined the woman after the alleged rape also testified. She stated that the woman presented to the hospital with injuries consistent with strangulation and rape. A witness for the defense testified that she had been present during the alleged rape and that it looked to her like consensual sex between Gray and a woman who had come to her house to smoke marijuana. The jury was instructed that it could only consider evidence of the alleged 2013 rape as evidence of Gray's intent to commit rape and aggravated criminal sodomy in the current case. Gray testified in his own defense at trial. He stated that he and C.R. had been friends since they were 11 or 12 and had hung out together regularly since that time. Around 3 p.m. on June 24, C.R.

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State v Gray picked Gray up at his mother's house and the two of them then picked up C.R.'s daughter and returned to C.R.'s house. C.R. put M. in the bathtub to bathe and then snorted some cocaine with Gray. Before going to take a bath herself, C.R. told Gray to open the curtains and let some light into the house. Gray stood on a chair next to the front window to move the curtains, and his nose began to drip blood. He stopped the blood with a tissue and eventually flushed the tissue and wiped the blood from his face and hands in the bathroom. After dropping M. off at C.R.'s mother's house, C.R. and Gray drank alcohol while driving to the mall. They shopped until about 8 p.m. and then went to Gray's friend's house on Cottonwood. Gray had been living with his brother just a few houses over. At his friend's house, Gray and C.R. drank and did cocaine. Around 10 p.m., C.R. left to pick up her daughter. C.R. invited Gray to come with her, but he decided to stay and said he would come over to C.R.'s house later. Gray further testified that sometime later, he began walking to C.R.'s house. At some point, a stranger drove him part of the way. Gray knocked on C.R.'s front door upon arriving at her house. When C.R. did not answer, Gray went to look in her window. Gray testified that the window was not broken. C.R. eventually opened the front door and let Gray in. C.R., and Gray did some cocaine and then Gray asked her if she wanted to have sex. C.R. agreed, did some more cocaine, and then went to check on M. C.R. then directed Gray to the bathroom and told him they could have sex in there. She and Gray had vaginal and anal sex, with C.R. leaning over the bathtub and Gray behind her. After this, Gray left. He went to a friend's house to sleep and eventually returned to his brother's house. He slept until about 5 p.m. and then went to work at Olive Garden until about 10 p.m. where he cut his hand on a steak knife. On his way home from work, he learned from friends that C.R. had died. During his testimony, Gray acknowledged that he had originally given detectives a different story. He said that he did this because he was scared. Gray also testified that he gave the detectives the clothes that he had been wearing when he was at the mall with C.R., but that he never gave them the shorts or the shoes that he wore to her house later that night. Gray testified that those

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State v. Gray shorts had C.R.'s menstrual blood on them and that his shoes smelled bad so he had put them in a bag. Gray stated that those shorts and shoes were both in a bag "wherever [his] brother had moved to." The jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. It found him not guilty of aggravated criminal sodomy. The district court sentenced Gray to life in prison without the possibility of parole for 50 years for the murder conviction. The court also imposed a consecutive 267-month prison sentence for the rape and a consecutive 34-month prison sentence for the aggravated burglary.

Gray appealed directly to this court.

DISCUSSION

Identical Offenses

Gray claims the district court should have sentenced him for intentional second-degree murder even though he was convicted of first-degree premeditated murder. Gray asserts that these crimes are identical offenses and points out that, under the identical offense doctrine, a court can only sentence him based on the offense that carries a lower sentence. Gray did not raise his identical offense argument in the district court. Generally, this court will not consider legal theories that were not raised in the courts below. State v. Perkins, 310 Kan. 764, 768, 449 P.3d 756 (2019); Pierce v. Board of County Com- missioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). Gray argues that this court can consider his claim for the first time on appeal for two reasons: (1) K.S.A. 2019 Supp. 21- 6820(e)(3) "confers appellate courts with jurisdiction to review claims that a sentencing court erred in ranking the crime severity level of a defendant's conviction" and (2) an exception applies here because "identical offense challenges are purely legal issues." Gray's statutory argument fails. K.S.A. 2019 Supp. 21- 6820(e)(3) provides:

"In any appeal from a judgment of conviction, the appellate court may review a claim that . . . the sentencing court erred in ranking the crime severity

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State v Gray level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes."

Gray is not challenging the classification of the crime of conviction—he's challenging the district court's authority to sentence him based on the crime of conviction. Because he does not challenge the classification of his crime of conviction, this statute does not support his argument that we must review his unpreserved claim for the first time on appeal. Gray next urges us to review his claim under an exception to the preservation rule. He correctly points out that we sometimes choose to do this when at least one of the circumstances identified in Perkins is present: (1) "[t]he newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case"; (2) consideration of the question is "necessary to serve the ends of justice or to prevent the denial of fundamental rights"; or (3) the judgment of a trial court should be upheld on appeal as "right for the wrong reason." State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Gray insists that the first exception applies because his claim presents a legal question. The decision to review an unpreserved claim under an exception is a prudential one. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017); State v. Frye, 294 Kan. 364, 369, 277 P.3d 1091 (2012). Even if an exception would support a decision to review a new claim, we have no obligation to do so. Parry, 305 Kan. at 1192. We decline to utilize any potentially applicable exception to review Gray's new claim. Gray had the opportunity to present his arguments to the district court and failed to do so. This failure deprived the trial judge of the opportunity to address the issue in the context of this case and such an analysis would have benefitted our review. We therefore decline to address Gray's new arguments on appeal.

K.S.A. 60-455 Evidence

Gray argues the district court erred when it admitted evidence of prior crimes under K.S.A. 60-455 because the prejudicial effect of that evidence outweighed its probative value.

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State v. Gray

"When admitting prior crime evidence under K.S.A. 2015 Supp. 60-455, the district court first determines whether the fact to be proven by the evidence is material, then considers whether the evidence is relevant to a disputed fact, and, finally, decides whether the probative value of the evidence outweighs the potential for undue prejudice. State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014). . . . An appellate court reviews this decision for an abuse of discretion. State v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015). 'A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.' State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014)." State v. Perez, 306 Kan. 655, 670, 396 P.3d 78 (2017).

Evidence of prior crimes or civil wrongs is generally "inadmissible to prove such person's disposition to commit crime or civil wrong." K.S.A. 2019 Supp. 60-455(a). However, this evidence "is admissible when relevant to prove . . . motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." K.S.A. 2019 Supp. 60-455(b). And under K.S.A. 2019 Supp. 60-455(d), when "the defendant is accused of a sex offense . . . , evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative." At trial, the State offered evidence of a rape that Gray allegedly committed in 2013. The district court admitted this evidence under K.S.A. 60-455 after concluding that the evidence was "probative of the material fact it is admitted to prove, i.e. the defendant's propensity to commit violent acts of rape" and that the probative value outweighed its prejudicial effect. The court found that the similarities between the alleged 2013 incident and the alleged rape in this case, the corroborating testimony of the sexual assault nurse, and the State's limited ability to prove that C.R. did not consent to sexual activity made the evidence highly probative. It also pointed out that the jury would receive a limiting instruction directing it to consider the evidence only when deliberating on the rape and criminal sodomy charges. The jury received the following limiting instruction:

"Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged. As to the crimes of Rape and Ag- gravated Criminal Sodomy, this evidence may be considered by you solely as

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State v Gray evidence of the Defendant's intent. You may not consider this evidence for any purpose as to the crimes of Murder in the first Degree and Aggravated Burglary. "It is for you alone as the jury to determine what weight to give this evidence in determining whether the State of Kansas has met its burden of proving all elements of the crimes of Rape and Aggravated Criminal Sodomy beyond a reasonable doubt."

The parties agree that as a result of this instruction, the evidence was admitted for the sole purpose of proving Gray's intent to commit rape and aggravated criminal sodomy. Gray appears to acknowledge that the evidence was material and relevant to a disputed fact. He argues only that the district court abused its discretion when it concluded that the evidence was more probative than prejudicial. Gray insists that no juror would have been able to follow the limiting instruction and, consequently, the prejudicial effect of the evidence on the murder charge outweighed its probative value with regard to the sex crime charges. We find no error. Gray fails to offer any supporting authority or explanation for his belief that the jury was incapable of following the district court's limiting instruction. To the contrary, as the district court noted, we presume jury members follow instructions. See State v. Seba, 305 Kan. 185, 204, 380 P.3d 209 (2016) (citing cases that support this notion). And in State v. Perez, we signaled our confidence in a jury's ability to consider prior sex crimes evidence when deliberating on a sex crime charge and to disregard it when considering a murder charge. In Perez, the defendant was charged with sex and non-sex offenses. The district court admitted evidence of the defendant's previous sex crimes and instructed the jury that "[e]vidence ha[d] been admitted tending to prove that the defendant committed crimes of a sexual nature, other than the present sex crime charged" and that the jury could consider such evidence "'solely for the purpose of proving the relationship of the parties and defendant's motive, intent, preparation, plan, knowledge, propensity, absence of mistake or accident.'" 306 Kan. at 674. Pe- rez argued that the limiting instruction should have explicitly limited the jury's consideration of propensity evidence to his propensity to commit the sex offense. We held that the instruction was not clearly erroneous because it "dealt only with evidence of previous sex crimes, referenced only 'the present sex crimes charged,'

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State v. Gray and was offered between two instructions that dealt with prior crimes of an entirely different nature." 306 Kan. at 674. Because we presume jury members follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence, and Gray fails to offer any facts or legal authority suggesting otherwise, his claim fails. We find no error in the admission of the prior sex crime evidence.

Jury Instructions

Finally, Gray argues that the district court erred when it did not instruct the jury on intentional second-degree murder as a lesser included offense of first-degree murder. We have regularly reiterated the applicable standard of review for jury instruction issues:

"'We must first decide whether the issue has been preserved. Second, we analyze whether an error occurred. This requires a determination of whether the instruction was legally and factually appropriate. We exercise unlimited review of those questions. Next, if we find error, we conduct a "reversibility inquiry."' State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018) (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 [2012]). "The standard for the reversibility inquiry depends on whether the instruction was properly requested in district court. If it was requested, the failure to offer it to the jury is grounds for reversal unless the State shows there is no reasonable probability the absence of the error would have changed the jury's verdict. State v. Barrett, 309 Kan. 1029, 1037, 442 P.3d 492 (2019); State v. Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016). If the instruction was not requested, this court applies a clear error standard to the reversibility inquiry. '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, 308 Kan. at 1451 (quoting Williams, 295 Kan. at 516). The burden to establish clear error is on the defendant. In examining whether a party has met its burden, we consider the entire record de novo. See Williams, 308 Kan. at 1451." State v. Gentry, 310 Kan. 715, 720-21, 449 P.3d 429 (2019).

Gray concedes that he did not request this instruction in the district court. Therefore, we review for clear error. Because second-degree intentional murder is a lesser included offense of premeditated first-degree murder, it would have been legally appropriate. Gentry, 310 Kan. at 721.

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State v Gray

The parties disagree about whether a second-degree intentional murder instruction was factually appropriate. Even assuming error, we conclude it was harmless and, therefore, not reversible. First-degree premeditated murder requires "the killing of a human being committed . . . [i]ntentionally, and with premeditation." K.S.A. 2015 Supp. 21-5402(a)(1). Intentional second-degree murder requires "the killing of a human being committed . . . [i]ntentionally." K.S.A. 2015 Supp. 21-5403(a)(1). The only difference between the two is premeditation. "Premeditation 'means to have thought the matter over beforehand,' meaning 'to have formed the design or intent to kill before the act.'" State v. McLinn, 307 Kan. 307, 321, 409 P.3d 1 (2018) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]). We generally consider several factors when deciding whether the State offered evidence of premeditation: "'(1) the 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.'" McLinn, 307 Kan. at 326 (quoting State v. Knox, 301 Kan. 671, 681, 347 P.3d 656 [2015]). There was strong evidence of premeditation in this case. The State submitted evidence that someone broke through C.R.'s window to enter her house, stabbed her 37 times, and then attempted to clean up the crime scene. Gray admitted being in C.R.'s residence on the night of her murder and could not turn over some of the clothes that he wore to her house. This all strongly supports a jury finding of premeditation. See State v. Blansett, 309 Kan. 401, 417, 435 P.3d 1136 (2019) (evidence of several stab wounds can support premeditation); State v. Scott, 271 Kan. 103, 110, 21 P.3d 516 (2001) (evidence defendant slashed victim's throat as or after victim died, mopped up crime scene, and destroyed evidence supported finding of premeditation); State v. Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 (2002) (multiple blows to victim supported finding of premeditation).

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State v. Gray

In light of the overwhelming evidence of premeditation, we are not firmly convinced that the jury would have reached a different verdict had the district court offered an instruction on intentional second-degree murder. The absence of such an instruction was not clear error.

Affirmed.

MICHAEL E. WARD, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 117,747 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Consti- tution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

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State v. Becker

No. 118,235

STATE OF KANSAS, Appellee, v. ANTHONY RAYMOND BECKER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Prosecutorial Error—Court Considers Context of State- ment. 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.

2. TRIAL—Jury Instructions—Failure to Give Lesser Included Offense Instruc- tion 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.

3. SAME—Jury Instructions—Failure to Give Lesser Included Offense Instruc- tion 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.

4. SAME—Noncapital Case—Failure to Instruct on Lesser Included Offense— Not Violation 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.

5. SAME—Jury Instructions—Voluntary Intoxication Instruction Not Automati- cally Warranted if Evidence 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.

6. SAME—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.

7. APPEAL AND ERROR—Cumulative Error Doctrine—No Relief if Single Er- ror. Relief under the cumulative error doctrine cannot be predicated upon a single error.

8. CRIMINAL LAW—Sentencing Court. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence.

VOL. 311 SUPREME COURT OF KANSAS 177

State v. Becker

Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed February 28, 2020. Judgment of the district court is affirmed in part and vacated in part.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Peter Maharry, of the same office, 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 the appellee.

The opinion of the court was delivered by

MCANANY, J.: A jury found Anthony Raymond Becker guilty of first-degree premeditated murder. On direct appeal, Becker asserts a claim of prosecutorial error, three claimed errors related to jury instructions, and an illegal sentence of lifetime postrelease supervision. Upon review, we conclude that (1) the prosecutor did not err in his comments in closing argument; (2) the district court did not commit reversible error in failing to instruct on lesser included crimes and on voluntary intoxication; (3) Becker's newly raised constitutional claims are without merit; and (4) there are not cumulative errors that require reversal; but (5) the district court erred in ordering lifetime postrelease supervision following Becker's indeterminate life sentence. Accordingly, we affirm Becker's conviction of first-degree murder, but vacate the portion of his sentence ordering lifetime postrelease supervision.

FACTUAL AND PROCEDURAL BACKGROUND

Anthony Becker, Chelsea Sosa, and Chris Boyd spent an af- ternoon in April 2015 smoking methamphetamine and driving around Dodge City. When they had consumed most of their meth they discussed ways of getting more. Boyd and Sosa were dating at the time. Boyd suggested that Sosa could engage in prostitution as a means of obtaining money to buy more methamphetamine. Sosa was hurt and angered by the idea. Becker was Sosa's ex-boyfriend, having dated her before Boyd did. Becker knew of the proposal that Sosa engage in prostitution, and he viewed Boyd as having a corrupting influence over Sosa. As a result, Becker planned to do away with Boyd. In order

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State v. Becker to set up the crime, Becker told Boyd they could find money in his parents' shed, but he would need Boyd's help moving something in order to get to the money. Once they arrived at Becker's parents' house in rural Ford County in the predawn hours of the following morning, Becker and Boyd headed for the shed, with Boyd in the lead. As Becker left the house behind Boyd, he grabbed a loaded pistol from a buffet in the house. When they got to the back of the shed, Becker fired 10 shots at Boyd, striking him 6 times. After Boyd fell to the ground, Becker stomped on Boyd's head to make sure he was dead. Becker walked back to the house, where he told Sosa that he had just killed Boyd. James Schmidt later helped Becker dispose of Boyd's body. Police found Boyd's body under the Bucklin Bridge in Ford County and later arrested Becker, Sosa, and Schmidt. Becker was interviewed by police officers and he confessed to shooting Boyd. Becker was charged with first-degree premeditated murder and conspiracy to commit first-degree murder. Sosa and Schmidt entered into plea agreements with the State and received probation. Before trial Becker unsuccessfully challenged the voluntariness of his confession. He does not now challenge that adverse ruling on appeal. The video recording of Becker's confession was played for the jury during trial and again during deliberations, at the jury's request. In the video Becker recounted the events leading up to Boyd's death and stated: "I shot him." He said he told Boyd there was money hidden in the shed, a lie calculated to lure Boyd to his death. Becker explained he was motivated by the corrupting influence Boyd had over Sosa. Becker said that Schmidt helped him dispose of Boyd's body. The police provided Becker with pen and paper and suggested that he write an apology letter to Boyd's family. Becker did so. He wrote:

"I am undiscribibly [sic] sorry for what I did to Chris, but I did It to save Chelsea's life. Chelsea means everything to me and what Chris was doing was destroying her. I wish there could have been another way but I did what I needed to do to protect the woman that is my world. There is nothing that can be done to fix It and apology doesn't even come close. But I am sorry."

At the close of all the evidence Becker requested jury instructions on the lesser included crimes of second-degree murder and

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State v. Becker voluntary manslaughter. Becker also requested an instruction on voluntary intoxication. The court declined to give any of these requested instructions. The court's jury instructions included the directive: "In your fact-finding, you should consider and weigh everything admitted into evidence." In Becker's closing argument, his counsel attacked Sosa's credibility. He conceded the accuracy of some of her testimony, namely that Boyd wanted Sosa to prostitute herself in order to get money with which they could buy more drugs. But Becker's counsel argued from this that Sosa—rather than Becker—had a motive to kill Boyd.

"We have [Sosa] testifying that she was mad at Boyd because he wanted to pimp her out for methamphetamine. That gives her a motive, ladies and gentlemen. In fact, it was the night that happened where he suggested: Let's sell you for sex so I can have drugs. Shortly thereafter Boyd ended up dead."

Counsel also argued that Sosa had written a letter of apology to Boyd's family, further evidencing her guilt as the one who pulled the trigger. Sosa's letter had been admitted into evidence. She wrote:

"I am sorry truely [sic] sorry I lied to you and didn't call the cops after this happened. I didn't know what to do or say[.] I've never gone through anything in my life like this[.] I hope you can understand I feared the whole situation. I really did care about Chris and I[']m sorry and completely understand if you despise and hate me."

Moreover, Becker's counsel argued: "Sosa took the stand yester- day in front of you, said, yep, I was charged with first degree murder as well. I made a plea deal for probation."

In the State's rebuttal argument, the prosecutor made reference to the plea agreements the State entered into with Sosa and Schmidt.

"[Becker] told you that James Schmidt was only there to help dispose of the body. And, he also told you that James Schmidt was not there at the time of the murder. He didn't say that specifically in that language, but based on what he told you, Schmidt showed up to help move the body later. Nobody has put James Schmidt at Becker's house when this shooting occurred. "Now, let's talk about Chelsea Sosa for a minute, and James Schmidt. Both of them were convicted for what they actually did in this case. Both of them got convicted of obstructing apprehension or prosecution. You heard a little bit about what they did to qualify for that.

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State v. Becker

"Also, James Schmidt was convicted of conspiracy to commit aggravated battery. He said he wanted to severely beat Chris up. But, he didn't do it. That was never done. He did have a stick, but he never completed the aggravated battery. Also, this did not even involve a gun. "You can think back on the evidence and see if you think there was any evidence to support that [Sosa] or [Schmidt] had any part in murdering Chris. "And, even if you don't believe Chelsea Sosa, you have the Defendant's statement that contains all the evidence you need to convict him of murder in the first degree. "This case really boils down to a number of things. Defendant said he shot and killed Chris Boyd. How much or how little meth [Chelsea] Sosa used, doesn't matter. Anything Chris Boyd wanted Chelsea Sosa to do doesn't matter. It does not matter what happened to James Schmidt or Chelsea Sosa as far as their charges in this case. "During voir dire, do you remember I asked you if you'd be able to consider this case without considering what happened or what was going to happen to Sosa and Schmidt? Now you need to remember that. "What happened to them, what they pled to or didn't plead to, that is not part of this case. "It doesn't matter how many people Sosa was having sex with. That's not here. That's not a matter. "Also, the Defendant wrote an apology letter. Do you apologize if you didn't do something? "It also doesn't matter if Sosa had positive U.A.'s for meth in the last few days. "The bottom line in this case is that the Defendant, in his recorded interview, told you how he intentionally killed Chris Boyd. He told you how he did it with meditation—premeditation. You heard the Defendant say I shot him when he was asked about what happened to Chris."

The jury found Becker guilty of first-degree premeditated murder. At sentencing, the district court granted a downward departure from a sentence of lifetime imprisonment with no chance of parole for 50 years (hard 50), to lifetime imprisonment with no chance of parole for 25 years (hard 25). The sentencing court also imposed lifetime postrelease supervision. Becker's appeal brings the matter before us. This court has jurisdiction over Becker's direct appeal under K.S.A. 2018 Supp. 22-3601(b)(3), (4) (life imprisonment, off-grid crime).

ANALYSIS

The prosecutor's statements in closing argument do not constitute prosecutorial error.

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State v. Becker

Becker contends the prosecutor's statements regarding what happened to Sosa and Schmidt and "what they pled to or didn't plead to" require reversal and a remand for a new trial.

Standard of Review

We follow the analytic protocol stated in State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), in evaluating claims of prosecutorial error:

"Appellate courts will continue to employ a two-step process to evaluate claims of prosecutorial error. These two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801, (2011), cert. denied 565 U.S. 1221 (2012). We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when 'analyzing both constitutional and nonconstitutional error, an appellate court need only address the higher standard of constitutional error.' [Citation omitted.]" 305 Kan. at 109.

Discussion

Becker claims the prosecutor's statements regarding Sosa and Schmidt during closing argument were prosecutorial error. He contends their plea agreements were crucial to the jury's weighing the credibility of Sosa and Schmidt. And so, by stating "what they pled to or didn't plead to" was not part of the case, the prosecutor misstated the law and told the jury not to consider the plea agreements in weighing Sosa's and Schmidt's credibility. Likewise, he argues that when the prosecutor stated, "It does not matter what happened to James Schmidt or Chelsea Sosa as far as their charges in this case," the prosecutor made similar misstatements of law.

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State v. Becker

The first step in analyzing prosecutorial error is for us to decide whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. 305 Kan. at 104 ("The well-developed body of caselaw defining the scope of a prosecutor's 'wide latitude' is likewise sound and will continue to inform our review of future allegations of prosecutorial error."). Obvi- ously, misstating the law is not within the wide latitude given to prosecutors in closing arguments. State v. Pribble, 304 Kan. 824, 833, 375 P.3d 966 (2016). Inquiry into whether the witness was offered any arrangement or deal by the State in exchange for her testimony is crucial. State v. Davis, 237 Kan. 155, 158, 697 P.2d 1321 (1985). Thus, if the prosecutor instructed jurors to not consider plea agreements when weighing witness credibility, then the prosecutor committed error. 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. Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019). Taken in context, the prosecutor's argument in rebuttal, though inartfully expressed, did not direct the jury to ignore the plea agreements or to give them no weight in determining witness credibility. After all, the court had just instructed the jurors that they were to "consider and weigh everything admitted into evidence." Instead, it is apparent that the prosecutor was rebutting the attacks against Sosa—and, by inference, also against Schmidt— made by Becker's counsel in his closing argument regarding So- sa's favorable plea agreement. In essence, the prosecutor's rebuttal argued that Becker's videotaped confession to the crime and his letter of apology rendered the plea deals received by Sosa and Schmidt effectively immaterial. In other words, if the jury chose to totally disregard the testimony of Sosa and Schmidt, the State still had proven Becker's guilt beyond a reasonable doubt through his own recorded words—the voluntariness of which, we note, has not been challenged on appeal. The prosecutor's argument did not fall outside the wide latitude afforded prosecutors to conduct the State's case and was not an attempt to obtain a conviction in a manner that offended Becker's right to a fair trial.

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State v. Becker

Based upon this conclusion, we need not address the State's argument regarding where the burden of proof should be placed when deciding whether Becker was prejudiced by the State's argument.

The district court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter.

Standard of Review

Kansas appellate courts follow a three-step protocol for reviewing challenges to jury instructions: (1) we determine whether we can or should review the issue; that is, whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) we consider the merits of the claim to determine whether error occurred below; and (3) we assess whether the error requires reversal or whether the error was merely harmless. State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018) (quoting State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 [2012]). Even when an offense includes a lesser crime and is, therefore, legally appropriate, failure to instruct on the lesser included crime is erroneous only if the instruction also would have been factually appropriate under K.S.A. 2018 Supp. 22-3414(3). See State v. Walker, 308 Kan. 409, 425, 421 P.3d 700 (2018); State v. Molina, 299 Kan. 651, 661, 325 P.3d 1142 (2014). An instruction on a lesser included crime is factually appropriate if there is "'sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction.'" State v. Chavez, 310 Kan. 421, 430, 447 P.3d 364 (2019) (quoting State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 [2012]). If an instruction on a lesser included crime would have been legally and factually appropriate, the failure to give the instruction constitutes error. See State v. James, 309 Kan. 1280, 1300, 443 P.3d 1063 (2019).

Discussion

Becker requested both second-degree murder and voluntary manslaughter instructions. Becker argued the instructions were warranted because they were lesser included offenses of first-degree premeditated murder. Becker preserved the lesser included

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State v. Becker instruction issue for our review, so the first step of our analysis is satisfied. The second step is determining whether it was error not to give these lesser included instructions. Jury instructions on second-degree murder and voluntary manslaughter were legally appropriate in Becker's trial because they are lesser included offenses of first-degree premeditated murder. James, 309 Kan. at 1298. Therefore, resolution of this issue turns on whether these lesser included instructions were factually appropriate and, if so, whether failure to instruct on these lesser included crimes requires reversal.

Second-Degree Intentional Murder Instruction

We first turn to Becker's proposed but rejected second-degree intentional murder instruction. If we assume—without deciding— that the evidence presented at trial factually supported the giving of a second-degree intentional murder instruction, then the issue becomes whether the error in failing to give this lesser included instruction requires reversal. Becker's challenge necessitates the application of the nonconstitutional harmless error test set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011); see State v. Ross, 310 Kan. 216, 223, 445 P.3d 726 (2019); Plummer, 295 Kan. at 168. Under this test, the court must be persuaded that there is no reasonable probability that if the jury had been instructed on the lesser included offense, it would have found Becker guilty of second-degree intentional murder. Ward, 292 Kan. at 565. The only difference between second-degree intentional murder and first-degree premeditated murder is the added element of premeditation in a first-degree murder charge. See State v. Haber- lein, 296 Kan. 195, 204, 290 P.3d 640 (2012). Here, there was no evidence presented upon which a reasonable juror could conclude that Becker murdered Boyd without premeditation. Becker apologized to Boyd's family for the crime, stating: "I wish there could have been another way but I did what I needed to do to protect the woman that is my world." His motive was to prevent Boyd from prostituting Sosa in order to obtain money for drugs. He carried out this objective by telling Boyd that money for drugs could be found in

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State v. Becker a shed on his parents' property, but Becker would need Boyd's help to get it. On the way to the shed Becker picked up a gun which he knew was loaded. Once he and Boyd were at the back of the shed, Becker fired 10 shots at Boyd, striking him 6 times. When Boyd fell to the ground, Becker stomped on his head to make sure he was dead. Given these facts, there was no reasonable probability that a rational juror would have found that Becker's murder of Boyd was anything other than premeditated. We are satisfied that any error in failing to give an instruction on second-degree murder had no effect on the jury's verdict in this case. State v. Salary, 301 Kan. 586, 600, 343 P.3d 1165 (2015); State v. Killings, 301 Kan. 214, 224, 340 P.3d 1186 (2015).

Voluntary Manslaughter Instruction

Next, we turn to Becker's argument regarding the district court's failure to instruct on voluntary manslaughter. Becker argues that a voluntary manslaughter instruction was factually appropriate because the jury could have believed "the killing was not a cold, premeditated murder, but one done in the heat of passion after the trio quarreled about how to get drug money." Becker characterizes this as a "sudden" quarrel. The facts disclose otherwise. After the dispute over how to obtain drug money, Becker lied to Boyd about money they could get from a shed on the property at Becker's parents' house. They traveled to Becker's parents' house in rural Ford County for that purpose. It was there that Becker obtained the loaded gun and lured Boyd to the shed for the specific purpose of murdering him. A sudden quarrel involves an "unforeseen angry altercation, dispute, taunt, or accusation." State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010). There was no sudden quarrel here to support an instruction for voluntary manslaughter. The district court did not err in failing to give this instruction.

Becker's Newly Raised Constitutional Issue

As a final point regarding these requested instructions, Becker argues, for the first time on appeal, that the district court's refusal to give these lesser included offense instructions violated his right to a jury trial and his right to due process under the U.S. Constitu- tion. These claims are predicated on the assertions that in denying

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State v. Becker lesser included instructions the district court engaged in fact-finding that preempted the function of the jury and that the lack of a lesser included alternative required the jury to render an all or nothing verdict in violation of Becker's due process rights. The general rule is that claims of error raised for the first time on appeal, even if based on constitutional grounds, are not properly before the reviewing court. State v. Williams, 295 Kan. 506, 517, 286 P.3d 195 (2012). But an appellate court may address an issue for the first time on appeal if the issue meets one of our preservation exceptions. State v. Patterson, 311 Kan. 1122, 455 P.3d 792 (2020). Here, Becker argues that his claim is preserved because it meets our exception allowing newly asserted claims involving only questions of law on proved or admitted facts that are determinative of the case. See State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). In this instance, we decide to consider his claim. In Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), the court held that Alabama was constitutionally prohibited from eliminating the jury's option of convicting a defendant in a capital case of a lesser included offense. 447 U.S. at 637-38. But the Beck Court declined to decide whether to extend this prohibition to trials in noncapital cases. 447 U.S. at 638 n.14. Following Beck, this court in State v. Love, 305 Kan. 716, 729- 30, 387 P.3d 820 (2017), rejected a similar claim, concluding that the statutory elimination of all lesser included offenses for felony murder found in K.S.A. 2015 Supp. 21-5109(b)(1) did not violate due process. "Unlike the statutory scheme in Beck, the Kansas lesser-included-offense statute does not create a 'capital specific artificial barrier to the provision of instructions on offenses that actually are lesser included offenses under state law'—felony murder is not a capital offense." 305 Kan. at 734. Consistent with the analysis in Beck and Love, we find no merit in Becker's due process claim. A criminal defendant's right to a jury trial is protected by the Sixth Amendment to the United States Constitution. Similarly, Section 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall be inviolate." Becker's jury trial argument was asserted earlier in the context of Kansas constitutional

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State v. Becker law by the defendant in Love. There, the court held that "[w]hether to give lesser included instructions is squarely in the court's domain, rather than the jury's." 305 Kan. at 736. Moreover,

"We hold that the legislature's statutory elimination of lesser included offenses of felony murder does not implicate Section 5. Although a defendant has a right under Section 5 to have a jury determine his guilt of the charged crime in a felony prosecution, determining what additional crimes upon which the jury should be instructed as lesser included offenses is a matter of law for the court." 305 Kan. at 736-37.

The United States Supreme Court has not come to a contrary conclusion with respect to the Sixth Amendment's protection of the right of a criminal defendant to trial by jury. But the Sixth Cir- cuit has addressed the issue and has arrived at the same conclusion as the court did in Love: "Whether to give lesser included instructions is squarely in the court's domain." 305 Kan. at 736; see McMullan v. Booker, 761 F.3d 662, 669 (6th Cir. 2014) ("The jury-trial right does not prohibit judges from declining jury instructions on lesser included offenses in non-capital cases."). Based on this analysis, we are not convinced that the district court's failure to instruct on claimed lesser included crimes violated Becker's constitutional right to a trial by jury.

The district court did not err in failing to give a voluntary intoxication jury instruction.

Becker requested the voluntary intoxication instruction from PIK Crim. 4th 52.060, patterned after K.S.A. 2014 Supp. 21- 5205(b). That statute provides:

"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." K.S.A. 2014 Supp. 21-5205(b).

Becker objected to the district court's decision not to give this instruction. The objection properly preserved the issue for our review. K.S.A. 2018 Supp. 22-3414(3). A district court's failure to give a voluntary intoxication instruction is subject to harmless error review. State v. Moore, 287 Kan. 121, 134, 194 P.3d 18 (2008).

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State v. Becker

Evidence of consumption of an intoxicant near the time of the commission of the crime does not automatically render the voluntary intoxication instruction mandatory. State v. Reed, 302 Kan. 390, 400, 352 P.3d 1043 (2015). A voluntary intoxication instruction is not required unless "the State or the defendant presents sufficient evidence showing intoxication to the extent of impairing the ability to form the requisite intent." State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014). "'This court will not infer impairment based on evidence of consumption alone.'" State v. Hilt, 299 Kan. 176, 193, 322 P.3d 367 (2014). "Loss of memory or inability to remember events before or during the offense may show an inability to form intent." Betancourt, 299 Kan. at 141. "'Evidence that the defendant is so impaired that he or she has lost the ability to reason, to plan, to recall, or to exercise motor skills as a result of voluntary intoxication' can compel a jury instruction." Reed, 302 Kan. at 400. First-degree premeditated murder is defined as "the killing of a human being committed: (1) [i]ntentionally, and with premeditation." K.S.A. 2018 Supp. 21-5402(a). A person acts intentionally "when it is such person's conscious objective or desire to engage in the conduct or cause the result." K.S.A. 2018 Supp. 21- 5202(h). The court instructed the jury that 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 life."

Becker argues there was ample evidence of methamphetamine consumption presented at trial. The evidence establishes that Sosa, Becker, and Boyd had smoked methamphetamine that night. But there is nothing to indicate how much time elapsed between Beck- er's meth consumption and the shooting. Moreover, Becker presented no direct evidence that he was intoxicated at the time of the shooting. There was no evidence that his motor function was impaired. His ability to plan had not been impaired. He systematically brought Boyd to his parents' house and then to their shed with the specific intent to murder him. He accomplished the deed by obtaining from a bureau drawer a pistol which he knew was loaded. He did so in a fashion that did not alert Boyd to what was

VOL. 311 SUPREME COURT OF KANSAS 189

State v. Becker about to happen. Sosa described the shed as a "good distance" from the house. She testified that it took "a couple minutes" to walk from the house to the shed. After murdering Boyd, Becker apologized to Boyd's family, saying "I did what I needed to do to protect [Sosa]." As stated in State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817 (2017): "A defendant's ability to recall the circumstances surrounding the charged crime and provide a coherent narrative of his or her conduct undercuts a claim of intoxication sufficient to warrant a jury instruction." Here, Becker provided police with a detailed and cogent explanation of how he killed Boyd. The evidence relied upon by Becker, viewed in a light most favorable to him, establishes consumption but not intoxication to the extent that his ability to form the requisite intent was impaired. Hilt, 299 Kan. at 193. As a final point on this issue, Becker argues that, at his sentencing hearing, one of the district court's reasons for a downward departure sentence established that the district court should have instructed the jury on voluntary intoxication at trial. The court's journal entry of judgment, in the space for reasons cited as basis for departure, states: "Court finds defendant's lack of criminal history and ability to appreciate impaired by drug use substantial and compelling as mitigating factors." But in the space for the court's additional comments, the court stated: "Defendant's ability to appreciate impaired by drug use. Court found defendant's extreme distress due to drug use is compelling but not substantial." At sentencing the district court heard unsworn statements from Becker's parents. His mother, Kathy Becker, told the court that "when Tony got on meth, he changed. Not so much as that you'd notice, but he changed. It's only afterwards that I can—I can see it." She did not provide any information that would indicate a mental impairment at the time of the crime that would have warranted a voluntary intoxication instruction. Phillip Becker, Beck- er's father, told the court his son was not violent. "What happened in the six months prior to Chris' death, I don't—I didn't see it. . . . His teachers, we talked to them, they said there was no violence

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State v. Becker in him. I don't know what happened." These were the only statements related to Becker's mental state or his drug use. None of this was presented at trial. Neither of Becker's parents testified at trial. Their statements at the sentencing hearing do not establish a level of impairment at the time of the crime that would have warranted a voluntary intoxication instruction. In response to this new information, the court told Becker, "[M]aybe you can make an argument that the meth and the extent that it changed you is some evidence to support the extreme distress. But, I, again, don't find it's substantial and compelling, because it was a voluntary action." The court did not find that Becker's habitual methamphetamine use impaired his ability to appreciate the criminality of his actions in murdering Boyd or detracted from the evidence of premeditation. The district court did not err in failing to instruct on voluntary intoxication.

There was no cumulative error.

Relief from an accumulation of trial errors is predicated on a showing of substantial prejudice that resulted in the denial of a fair trial. In assessing the cumulative effect of errors during trial, the appellate court examines the errors in the context of the entire record, considering how the trial judge dealt with the errors as they arose; the nature and number of errors and their interrelationship, if any; and the overall strength of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014); see also State v. Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016).While a single error standing alone may not warrant a new trial, the cumulative effect of multiple errors may do so. To invoke the doctrine of cumulative error, there must be multiple errors to accumulate. State v. Gonza- lez, 307 Kan. 575, 598, 412 P.3d 968 (2018). Here, we assumed, without deciding, that the evidence presented at trial supported the giving of a second-degree intentional murder instruction. If we consider the failure to give that instruction to have been an error, the result is one harmless error and not multiple errors that can be accumulated for purposes of a cumulative error analysis. As Becker has demonstrated no other errors, there was no cumulative error in his trial.

VOL. 311 SUPREME COURT OF KANSAS 191

State v. Becker

The district court erred in ordering lifetime postrelease supervision.

Becker was sentenced to a hard 25 life sentence to be followed by lifetime postrelease supervision. Becker contends the lifetime postrelease supervision portion of his sentence was illegal.

Standard of Review

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which we have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). Though the issue of lifetime postrelease supervision was not raised below, if the imposition of lifetime postrelease supervision results in an illegal sentence, that error can be corrected at any time. K.S.A. 2018 Supp. 22-3504.

Discussion

Both Becker and the State agree that Becker is not subject to postrelease supervision. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off- grid, indeterminate life sentence. State v. Edwards, 309 Kan. 830, 835, 440 P.3d 557 (2019). Defendants such as Becker sentenced under K.S.A. 2018 Supp. 21-6620(c)(2)(A) "shall not be eligible for parole prior to serving 25 years' imprisonment." The district court erred in imposing a term of postrelease supervision rather than parole. The improper imposition of lifetime postrelease supervision can be vacated, allowing the district court to correct the judgment without the need for further proceedings. K.S.A. 60- 2106(c); State v. Johnson, 309 Kan. 992, 997-99, 441 P.3d 1036 (2019); State v. Phillips, 309 Kan. 475, 478, 437 P.3d 961 (2019); K.S.A. 2018 Supp. 22-3504(1) (correction of sentence); State v. Breeden, 297 Kan. 567, 593, 304 P.3d 660 (2013) (directing district court to enter nunc pro tunc order).

The district court's order for lifetime postrelease supervision is vacated.

The conviction is affirmed; the portion of his sentence ordering lifetime postrelease supervision is vacated.

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State v. Becker

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 118,235 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. Johnson.

VOL. 311 SUPREME COURT OF KANSAS 193

In re Kupka

No. 122,053

In the Matter of LAUREL R. KUPKA, Respondent.

___

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—Two-year Suspen- sion.

Original proceeding in discipline. Opinion filed February 28, 2020. Two- year suspension.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Dan- ielle M. Hall, Deputy Disciplinary Administrator, was with him on the formal complaint for the petitioner.

N. Trey Pettlon, of Law Offices of Pettlon & Ginie, of Olathe, argued the cause, and Laurel R. Kupka, respondent, argued the cause pro se.

PER CURIAM: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Laurel R. Kupka, of Shawnee, an attorney admitted to the practice of law in Kansas in 2011. On May 16, 2019, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer to the complaint on May 30, 2019. The parties entered into a written stipulation on August 12, 2019. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on August 13, 2019, where the respondent was personally present and was represented by counsel. The hearing panel determined the respondent violated KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 1.4(a) and (b) (2019 Kan. S. Ct. R. 299) (communication); 4.1(a) (2019 Kan. S. Ct. R. 361) (truthfulness in statements to others); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law).

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In re Kupka

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact

. . . . "7. Payne & Jones, Chartered, hired the respondent as an associate in August 2011. For the first three years of her employment, the respondent handled the limited action dockets in Johnson County and Wyandotte County, served as the city prosecutor for the City of Mission, Kansas, handled litigation matters, and assisted other members of the firm with insurance defense litigation. In June of 2015, another associate left the firm and the respondent took over that attorney's domestic law practice. At that time, respondent had never worked on any family law matters with the exception of researching particular issues for one of the partners. While trying to learn this new area of the law, respondent was engaged and planning her wedding in 2015 and was of the impression that Payne & Jones was not amenable to her taking time off from work to plan and organize her wedding matters. The respondent took no time off the week of her wedding and had a very short honeymoon and 'was back at [her] desk after that.' The departure of the other associates also meant that the Mission Mu- nicipal Court dockets became her responsibility which involved hour long dockets in the morning a few times a week and also at night a few days a week. "8. During respondent's employment with Payne & Jones, the respondent was not assigned a supervising attorney. Instead, a litigation partner was 'more or less' assigned to help the respondent. That litigation partner did not have a domestic practice and would not have been able to assist respondent insofar as her domestic practice. Although the respondent was assigned 'mentors,' meetings with such mentors were routinely cancelled for business reasons. As a result, respondent's meeting with the 'mentors' occurred sporadically. "9. In the fall of 2017, the respondent notified the firm that she was expecting her first child. Although respondent expected that her practice would wind down a little bit and that she would be able to take fewer cases at that time, that did not happen. Instead, respondent's workload grew rapidly. A partner's unexpected health issue resulted in the transfer of additional files to the respondent. Additionally, both her litigation paralegal and her family law paralegal experienced extended absences due to family issues. During their absences, respondent did not have any dedicated administrative assistance and spent time trying to keep up with the administrative work that was piling up. The respondent struggled to get organized but files were everywhere, papers were everywhere and notes were everywhere. According to the respondent it overwhelmed her to the point that she would 'sit there and stare at it and just be paralyzed.' The respondent came to realize that at this time, she was battling severe depression and anxiety.

"Representation of V.T. in Eviction Matter

"10. In August 2017, V.T. retained the firm to represent her in an eviction matter. The firm assigned the respondent to handle V.T.'s eviction case.

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"11. The respondent told V.T. that she filed a petition for unlawful detainer. The respondent also told V.T. that she appeared in court on the petition for unlawful detainer. The respondent's statements to her client were false. "12. The respondent's billing records for a different client establish that the respondent participated in a mediation the day that the respondent indicated that she appeared in court on the petition for unlawful detainer. "13. In February 2018, toward the end of the respondent's pregnancy, V.T. contacted the firm, expressed her displeasure with the respondent's delay on her case, and informed the firm that she would be hiring a different attorney to handle the eviction matter. "14. Members of the firm reviewed the respondent's file regarding her representation of V.T. In the file was a petition for unlawful detainer which purported to have been filed in Jackson County, Missouri. The case number on the petition did not match the court records. To make it appear as though it had been filed, the respondent cut and pasted a filed-stamp from a different case onto the petition for unlawful detainer. "15. Members of the firm's management confronted the respondent regarding her representation of V.T. The respondent admitted that she did not file the petition for unlawful detainer, did not appear in court on behalf of V.T., and cut a filed-stamp from another pleading and pasted it on the petition for unlawful detainer. The firm's management asked the respondent if there were other matters that she was handling that had similar problems. The respondent told the firm's management that the V.T. case was the 'worst one.' After members of the firm investigated V.T.'s complaint against the respondent, they reviewed all of the respondent's files. Members of the firm spent many hour reviewing the respondent's work, completing work undertaken by the respondent, and correcting the respondent's misconduct. In some of the cases, the firm did not collect fees and in one case, the firm paid a client $3,000.

"Representation of B.R.D. in Garnishment

"16. In 2012, the firm assigned the respondent to provide representation to a corporate client, B.R.D. in a garnishment matter. "17. The respondent informed her client and her supervising attorney that judgment had been entered in favor of her client and against the garnishee for failure to respond to the garnishment. The respondent's statements were false. "18. The respondent provided her supervising attorney with a judgment which purported to have been filed by the court on April 14, 2015. However, the court never entered judgment in that case. The respondent falsified the judge's signature and court's filed-stamp on the judgment.

"Representation of B.H. in Post-Divorce Matter

"19. In 2015, the respondent was assigned by the firm to represent B.H. in a post-divorce matter. On October 19, 2015, the respondent entered her appearance on behalf of B.H. According to the court file, the entry of appearance was the last action taken by the respondent.

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"20. The respondent's file included filed-stamped interrogatories to garnishee. The respondent cut and pasted the filed-stamp onto the interrogatories to garnishee as the interrogatories to garnishee were never filed. "21. The respondent's file also included a garnishment application and order, which purported to have been issued by the court clerk on October 26, 2015, and returned on November 25, 2015. The respondent cut and pasted the clerk's signature from a garnishment application and order in another case. "22. During the period the respondent represented B.H., she told her supervising attorney that she made multiple court appearances on behalf of B.H. in the post-divorce matter. The respondent's statements to her supervising attorney were false.

"Other Cases

"23. In addition to the three cases detailed above, in 15 other cases, the respondent engaged in misconduct. In those same cases, the respondent made mis- representations to clients and supervisors, she failed to adequately communicate with her clients, and she failed to timely complete tasks. Specifically: a. The respondent told F.B., a client, that she filed a name-change case when she had not filed the case. The respondent told F.B. that the delay in completing the case was caused by the court. b. The respondent advised H.C., a client, on multiple occasions that a case had been filed on behalf of H.C. when the case had not been filed. c. The respondent failed to respond to J.G.'s requests for information. d. The respondent failed to perform work for J&D, a business client, but informed J&D that the matter was moving forward. e. The respondent failed to timely respond to email messages sent by and telephone calls from her client, P.J. f. The respondent informed her client, A.L., that an expungement case had been filed on behalf of A.L., when the case had not been filed. g. The respondent advised her client, D.V., that pleadings were filed in a tenant dispute matter when the pleadings had not been filed. The respondent also advised D.V. of hearing dates when no hearing dates had been scheduled. Fi- nally, the respondent informed D.V. that the opposing party delivered rent checks when the tenant had not done so. h. The respondent advised E.N., a client, that suit had been filed and a default judgment had been obtained on her behalf. The respondent, however, never filed suit. Eventually, the respondent's firm paid $3,000 to correct the respondent's misconduct. i. The firm was retained by an Arizona law firm to register two foreign judgments. The respondent registered both judgments properly. However, the respondent informed the client that a hearing had been held, when no hearing had been scheduled. j. The respondent failed to respond to inquiries by L.P., the respondent's client. In that case, the respondent also failed to file pleadings, filed pleadings without the approval of her client, and missed deadlines.

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k. The respondent represented A.S. in a domestic case. The respondent failed to adequately communicate the client's responsibilities under the journal entry. Additionally, the respondent failed to provide the client with a copy of an accusation in contempt. l. The respondent represented Z.S. in a traffic matter. The respondent failed to submit an application for diversion and failed to properly communicate with her client. m. The respondent represented B.W. During the course of the representation, the respondent failed to diligently pursue a remedy for her client and she failed to properly communicate with him. n. The respondent represented J.W. in a real estate matter. The respondent failed to diligently represent J.W. o. The respondent represented A.Z., the mother in a domestic matter. A guardian ad litem was appointed for the child. A.Z. requested that the respondent file a motion to modify the order appointing the guardian ad litem. The respondent never filed the motion. The respondent also failed to properly communicate with her client.

"Disciplinary Complaints and Investigation

"24. On June 18, 2018, Jodde Olsen Lanning filed a complaint against the respondent. Additionally, on June 20, 2018, the respondent self-reported her misconduct. On August 20, 2018, the respondent provided a detailed response to Ms. Lanning's complaint, admitting her misconduct. "25. The respondent fully cooperated during the disciplinary investigation and readily admitted her misconduct. At the hearing on the formal complaint, the respondent reimbursed the firm the $3,000 paid to E.N.

"Conclusions of Law

"26. The respondent stipulated that she violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 4.1(a) (truthfulness in statements to others), KRPC 8.4(c) (conduct involving dishonesty), KRPC 8.4(d) (conduct prejudicial to the administration of justice), and KRPC 8.4(g) (conduct that adversely reflects on the lawyer's fitness to practice law). "27. Based on the respondent's stipulation, the findings of fact, and the evidence received in this case, the hearing panel concludes as follows:

"KRPC 1.1

"28. Lawyers must provide competent representation to their clients. KRPC 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The respondent failed to exercise the thoroughness reasonably necessary in her representation of V.T., B.R.D., B.H., and many other clients. Thus, the hearing panel concludes that the respondent violated KRPC 1.1.

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In re Kupka

"KRPC 1.3

"29. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent V.T., B.R.D., B.H., and many other clients. Because the respondent failed to act with reasonable diligence and promptness in representing her clients, the hearing panel concludes that the respondent violated KRPC 1.3.

"KRPC 1.4

"30. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.' In this case, the respondent violated KRPC 1.4(a) when she failed to respond to requests from her clients for information regarding the status of the representation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a). "31. KRPC 1.4(b) provides that '[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.' The respondent likewise violated KRPC 1.4(b) when she provided V.T., B.R.D., B.H., and many other clients with false information regarding the status of the representations. The hearing panel concludes that the respondent violated KRPC 1.4(b).

"KRPC 4.1

"32. KRPC 4.1(a) provides that '[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.' The respondent repeatedly violated KRPC 4.1(a) when she provided false information to many clients as well as her supervising attorneys regarding the status of the representations. The hearing panel concludes that the respondent violated KRPC 4.1(a).

"KRPC 8.4(c)

"33. 'It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The respondent engaged in conduct that involved dishonesty when she cut and pasted filed-stamps, a clerk's signature, and a judge's signature onto draft pleadings and orders. The respondent also engaged in conduct that involved dishonesty when she falsely told her clients and supervising attorneys that action had been taken in the various cases when it had not been. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).

"KRPC 8.4(d)

"34. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when she failed to file pleadings on behalf of clients. Because the respondent failed to file

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In re Kupka pleadings on behalf of her clients, the causes of action were delayed. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).

"KRPC 8.4(g)

"35. 'It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on her fitness to practice law when she cut and pasted filed-stamps, a clerk's signature, and a judge's signature onto draft pleadings and orders. The respondent also engaged in conduct that adversely reflects on her fitness to practice law when she falsely told her clients and supervising attorneys that action had been taken in the various cases when it had not been. The hearing panel concludes that the respondent violated KRPC 8.4(g).

"American Bar Association Standards for Imposing Lawyer Sanctions

"36. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors. "37. Duty Violated. The respondent violated her duty to her clients, the public, and the legal profession to maintain her personal integrity. "38. Mental State. The respondent knowingly violated her duty. "39. Injury. As a result of the respondent's misconduct, the respondent caused serious potential injury to her clients and actual injury to her law firm.

"Aggravating and Mitigating Factors

"40. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present: a. Dishonest or Selfish Motive. There is no dispute that the respondent exercised poor judgment and engaged in dishonest conduct by fabricating court pleadings and orders; cutting and pasting filed-stamps on pleadings and orders; cutting and pasting a clerk's signature and a judge's signature; and communi- cating dishonest information to her clients and her law firm. However, the evidence also paints a picture of an associate attorney whose poor judgment appears to have been triggered by her overwhelming workload, lack of direct supervision, and her depression. Certainly, evidence that the respondent took on additional files to assist a partner having family issues and handled administrative duties after taking an increased workload reflects selfless conduct. Whether respondent's actions were the result of her dishonest motive, is worthy of some discussion. Again, it is clear that various actions taken by the respondent were dishonest. The standard, however, is whether the respondent

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In re Kupka had a dishonest motive; not whether the results of her action were dishonest. Did she undertake the acts to be dishonest? The evidence reflects that respondent's actions were, at least in part, driven by her workload, depression, and anxiety. There was substantial evidence that during a significant portion of the time, the respondent's workload was overwhelming, that she had very little mentoring, and that sufficient administrative staff was not available to her. Notwithstanding her mental state and the workload, the facts reflect that respondent had a dishonest motive at the time she took various actions including falsifying pleadings, advis- ing that a lawsuit had been filed and judgment entered, and misrepresenting that she was in court when she was not. The hearing panel concludes that although the respondent was suffering from depression and anxiety, the respondent was aware of her conduct which clearly involved dishonesty and that she was motivated by dishonesty. b. A Pattern of Misconduct. The respondent engaged in similar misconduct in multiple cases. She lacked diligence in representing 14 clients. She failed to adequately communicate with 16 clients. Further, the respondent engaged in dishonest conduct in representing 10 clients. The respondent engaged in patterns of misconduct. c. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 4.1(a) (truthfulness in statements to others), KRPC 8.4(c) (conduct involving dishonesty), KRPC 8.4(d) (conduct prejudicial to the administration of justice), and KRPC 8.4(g) (conduct that adversely reflects on the lawyer's fitness to practice law). The hearing panel concludes that the respondent committed multiple offenses. d. Vulnerability of Victim. The respondent engaged in misconduct in representing 18 clients. Many of the respondent's clients were vulnerable to the respondent's misconduct. "41. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: a. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined. b. Personal or Emotional Problems if Such Misfortunes Have Contrib- uted to Violation of the Kansas Rules of Professional Conduct. The evidence presented at the hearing established that the respondent was overwhelmed and overworked. In 2015 and 2016, after the respondent fell behind on her work, her firm provided her with mentors but such mentoring was sporadic and ended in 2017. With the departure of other associates, the respondent's work load was increased and her areas of practice were expanded. Despite the increase, she was not provided with any additional administrative support or mentoring. In fact, her administrative support took extended leaves of absence during this period of time leaving the respondent to not only handle her lawyer duties but to also cover administrative duties. Because of the overwork, she became overwhelmed. Fur- ther, the respondent suffers from depression and anxiety. It is clear that the respondent's depression and anxiety contributed to the misconduct. The respondent

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In re Kupka sought treatment for her depression and anxiety; and the respondent is in compliance with the treatment plan. Further, the respondent entered into a professional monitoring agreement with KALAP and the respondent is likewise in compliance with the professional monitoring agreement. c. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to the violations. d. Inexperience in the Practice of Law. The Kansas Supreme Court admitted the respondent to the practice of law in 2011. At the time the misconduct began, the respondent had been practicing law for only four years. The respondent was inexperienced in the practice of law. e. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Johnson County, Kansas. The respondent also enjoys the respect of her peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. f. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct. "42. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards: '4.42 Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. '4.62 Suspension is generally appropriate when a lawyer knowingly de- ceives a client, and causes injury or potential injury to the client. '5.11 Disbarment is generally appropriate when: . . . . (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice. '5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law.'

"Recommendations of the Parties

"43. The disciplinary administrator recommended that the respondent's license to practice law be suspended for a period of two years. Finally, the deputy disciplinary administrator recommended that after serving one year of suspension, the respondent be allowed to resume the practice of law under the proposed plan of probation.

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In re Kupka

"44. Counsel for the respondent recommended that the respondent be allowed to continue to practice law subject to the terms and conditions contained in the respondent's proposed plan of probation. "45. When a respondent requests probation, the hearing panel is required to consider Kan. Sup. Ct. R. 211(g)(3), which provides: '(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.' "46. The respondent developed a workable, substantial, and detailed plan of probation. The respondent provided a copy of the proposed plan of probation to the disciplinary administrator more than 14 days prior to the hearing on the formal complaint. The respondent, however, did not provide the proposed plan of probation to each member of the hearing panel more than 14 days prior to the hearing. "47. The respondent put the proposed plan of probation into effect prior to the hearing on the formal complaint by complying with each of the terms and conditions of the probation plan. "48. Unfortunately, however, some of the misconduct, in this case, cannot be corrected by probation. Specifically, dishonest conduct cannot be effectively supervised. See In re Stockwell, 296 Kan. 860, 868, 295 P.3d 572 (2013) ('More- over, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.'). "49. Finally, at this time, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. Be- cause the respondent engaged in extensive dishonest conduct, a period of suspension is warranted. The hearing panel, however, is persuaded by the significant mitigating evidence presented in this case and concludes that a short suspension followed by a period of probation is appropriate in this case.

"Recommendation of Hearing Panel

"50. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of two years. The hearing panel further recommends that after serving six months of the suspension that the respondent be automatically reinstated to the active practice of law and placed on probation for a period of

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In re Kupka two years, subject to the terms and conditions detailed in the respondent's plan of probation. "51. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2019 Kan. S. Ct. R. 257). Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The respondent was given adequate notice of the formal complaint to which she filed an answer. The respondent was also given adequate notice of the hearing before the panel and the hearing before this court. She did not file exceptions to the hearing panel's final hearing report. As such, the panel's factual findings are deemed admitted. Supreme Court Rule 212(c), (d) (2019 Kan. S. Ct. R. 261). The evidence also supports the panel's conclusions of law. We, therefore, adopt the panel's findings and conclusions. The only remaining issue before us is the appropriate discipline for the respondent's violations. At the hearing before this court, the office of the Disciplinary Administrator recommended that the respondent's license to practice law be suspended for a period of two years and that, after one year, the respondent be allowed to petition for reinstatement subject to a reinstatement hearing under Supreme Court Rule 219 (2019 Kan. S. Ct. R. 270). The hearing panel recommended that the respondent be suspended from the practice of law for a period of two years and that, after six months, the respondent be automatically reinstated and placed on probation for a period of two years subject to the terms and conditions detailed in respondent's plan of probation. The respondent requested probation subject to the terms and conditions in respondent's plan of probation.

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In re Kupka

This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f). But this court agrees that a two-year period of suspension is warranted given the serious nature of the respondent's acts that gave rise to the multiple violations in this matter. While it is clear that respondent has made notable strides in understanding and addressing the personal issues that led to the ethical lapses and serious rule violations resulting in this complaint, we cannot merely adopt a recommendation of probation without first assur- ing that the respondent has in place a structure in her personal life and professional practice that protects the public from future transgressions. Therefore, in consideration of all the facts and circumstances, the respondent will be eligible to apply for reinstatement under Rule 219 after completing nine months of the two-year suspension. A minority of this court supported a longer period of time before the respondent could seek reinstatement.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Laurel R. Kupka be and she is hereby disciplined by suspension for a term of two years in accordance with Supreme Court Rule 203(a)(2) (2019 Kan. S. Ct. R. 240).

IT IS FURTHER ORDERED that following the completion of nine months of suspension, the respondent may petition for an early reinstatement and must undergo a hearing under Rule 219 (2019 Kan. S. Ct. R. 270).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268) (notice to clients, opposing counsel, and courts of record following suspension).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

BEIER AND WILSON, JJ., not participating.

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In re Kupka

1 ANTHONY J. POWELL, J., assigned.

2 PATRICK D. MCANANY, Senior Judge, assigned.

MICHAEL J. MALONE, District Judge Retired, assigned.3

1REPORTER'S NOTE: Judge Powell, of the Kansas Court of Appeals, was appointed to hear case No. 122,053 vice Justice Wilson under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c).

2REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 122,053 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.

3REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 122,053 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

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State v. Carter

No. 116,223

STATE OF KANSAS, Appellee, v. TABITHA CARTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Kansas Offender Registration Act—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.

2. SAME—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, 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.

3. SAME—Kansas Offender Registration Act—Use of Weapon in Commis- sion 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).

4. SAME—Use of Deadly Weapon in Commission of Person Felony—Judge's Finding 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).

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 511, 419 P.3d 55 (2018). Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed March 6, 2020. Judgment of the Court of Appeals reversing the district court on the issue subject to review is reversed. Judgment of the district court is affirmed.

Jennifer C. Roth, of Kansas 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 briefs for appellee.

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PER CURIAM: Tabitha Carter robbed a Dollar General using a Taser. A jury convicted her of aggravated robbery. The district court judge found that Carter used a deadly weapon to commit a person felony and ordered her to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 2019 Supp. 22-4902(e)(2). Carter appeals, arguing that the registration requirement was procedurally unsound and not supported by the evidence. We reject these arguments and affirm Carter's registration requirement.

FACTUAL AND PROCEDURAL BACKGROUND

An individual wearing a clown mask entered a Wichita Dollar General in May 2015 and demanded the employees, Celia Reyes and Kaylan Sanders, hand over cash from the store's safe. While in the store, the robber displayed a Taser. The robber made away with over $3,000. The State charged Carter, a former Dollar General employee, with aggravated robbery in violation of K.S.A. 2011 Supp. 21- 5420(b)(1). The State alleged that Carter robbed Kaylan Sanders "by force or threat of bodily harm . . . while [Carter] was armed with a dangerous weapon, to-wit: stun gun or Taser." The case proceeded to a jury trial, in which the State's theory was that Reyes was Carter's accomplice while Sanders was not. At trial, Reyes denied that she was involved in the planning or execution of the crime and denied that Carter was the robber. Reyes testified that after the robber entered the store and was walking towards the safe, she noticed the robber "had something in his hands, but I wasn't sure what it was at the time." She said she was fearful the robber would hurt her and Sanders if they did not give the robber the money. She said, "[E]specially after we did give him the money because he—I believe it was a Taser—because, you know, at first I didn't know what it was. But once he got up close, I believe it was a Taser in a black box kind of." Later, she said that when the robber first came into the store, she "saw an object in his hand, and so [her] first thought was, is it a gun? And my second thought was, I'm really not trying to get shot." She agreed that she was "certain that the robber had a weapon" and that the robber showed it to her.

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State v. Carter

Sanders testified that she did not see the Taser until after she and Reyes had handed over the money from the store's safe. Once she and Reyes put the money in the robber's bag, she said, "[the robber] pulled out a Taser. And then [Reyes], she was like no, please. And then the robber just ran out." Sanders believed that the robber was going to tase her. She also testified that the robber pulled the Taser out "almost as if they were pulling it out to show us that they have it." After the jury convicted Carter of aggravated robbery, the district judge imposed a downward departure sentence of 36 months in prison. The district judge then asked, "Is there anything further we need on the record?" The State replied:

"[STATE]: Your Honor, I believe there would be a duty to register. "THE COURT: Is there in this case? All right. "[STATE]: With the finding of the dangerous weapon. "THE COURT: Well, I do find that there was a dangerous weapon involved. I did not prepare—but I will have to prepare the Notice of Duty to Reg- ister. "In that regard, Ms. Carter, there is a duty to register as a—under the Kansas Offender Registration Act." (Emphasis added.)

The district judge checked a box on Carter's journal entry of sentencing form stating: "Offender committed the current crime with a deadly weapon as determined by the court." The journal entry also set out that the reason for Carter's registration requirement was: "Any conviction of a person felony with court finding on the record that such felony was committed with a deadly weapon—K.S.A. 2012 Supp. 22-4902(e)(2)." Nothing in the record shows Carter objected to the oral pronouncement or the journal entry's checked box. Carter's defense counsel signed off on the journal entry. Carter appealed her conviction and the district judge's order that she register under KORA. A panel of our Court of Appeals affirmed Carter's conviction but held that she was not required to register under KORA because, the panel concluded, Carter did not use a deadly weapon during the robbery. State v. Carter, 55 Kan. App. 2d 511, 519, 419 P.3d 55 (2018). Both parties petitioned for review. This court granted only the State's petition and ordered the parties to address whether, given this court's holding in State v. Thomas, 307 Kan. 733, 750, 415

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State v. Carter

P.3d 430 (2018), the Court of Appeals had jurisdiction to address the registration requirement at all.

DISCUSSION

As an initial matter, we agree with the parties that we have appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a). See State v. Marinelli, 307 Kan. 768, 786, 415 P.3d 405 (2018) (defendant may appeal imposition of registration requirement as "judgment . . . decision . . . or intermediate order made in the progress of the case" under K.S.A. 2018 Supp. 22-3602[a]); Thomas, 307 Kan. at 750. KORA requires individuals convicted of certain crimes to register with the State. One category of individuals required to register are "violent offenders." KORA provides multiple ways in which a person may qualify as a "violent offender" and thus be subject to the Act's registration requirement. The relevant section here is K.S.A. 2019 Supp. 22-4902(e)(2), which defines a violent offender as a person who "on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony." (Emphasis added.) Carter attacks her registration requirement in three ways. First, she argues that she was not required to register because the district judge found only that a dangerous weapon was involved in her crime, not that she used a deadly weapon in the commission of the crime, which was the finding required by the applicable statute. Second, she argues there was no evidence in the record to support a finding that she used a deadly weapon. Third, she argues that the district judge's fact-finding violated Apprendi v. New Jer- sey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We address each argument in turn.

Necessity of a Finding on the Record

Recent decisions of this court have made it clear that a district judge must make a finding on the record before a KORA obligation to register as a violent offender arises. See Marinelli, 307 Kan. at 734; Thomas, 307 Kan. at 748-49.

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State v. Carter

In Thomas, decided the same day as Marinelli, a jury convicted Sheena Thomas of aggravated battery with a deadly weapon for attacking another woman with a stiletto heel. The district judge did not inform Thomas of a KORA registration requirement at the time of her conviction. At sentencing, the district judge told Thomas she must register, but at no time did the district judge make a finding on the record that Thomas used a deadly weapon in the commission of the crime. There was no oral pronouncement; nor did such a finding appear in the journal entry of sentencing. The Court of Appeals panel held that the district judge's failure to make the finding meant Thomas could not be required to register, and it vacated "that portion of [her] sentence" and remanded for the district judge to make the necessary finding. 307 Kan. at 746. A majority of this court decided in Thomas that the Court of Appeals remand order was error. That majority, building on earlier decisions holding that an obligation to register under KORA does not qualify as punishment, see, e.g., State v. Meredith, 306 Kan. 906, 911, 399 P.3d 859 (2017), ruled that the necessary violent offender finding was not part of Thomas' sentence. Further, the district court lost jurisdiction to make the finding when the case was docketed for appeal; and that jurisdiction could not be resuscitated on remand for a belated finding. 307 Kan. at 749-50. In this case governed by K.S.A. 2019 Supp. 22-4902(e)(2), the district judge made an oral finding on the record that there "was a dangerous weapon involved" in Carter's crime. This language differed from that required by the statute, but the judge's journal entry included a checked box stating that he found Carter used a deadly weapon in the commission of her crime. Carter's arguments on appeal entirely disregard the journal entry and do not explain why it should not qualify as an adequate KORA finding on the record. Although Carter might have asserted that a sentence pronounced from the bench typically controls over a differing journal entry, see Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007), that rule is not applicable here because of the majority holding in Thomas that registration is not part of a defendant's sentence.

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State v. Carter

In the absence of any other argument from Carter to the contrary, we hold that the journal entry included in the record of this case shows the district judge made the necessary finding under K.S.A. 2019 Supp. 22-4902(e)(2). Thus Carter's first challenge to her registration requirement fails.

Substantial Competent Evidence to Support the District Judge's Finding

Carter contends that no evidence supports the district judge's finding that she used a deadly weapon in the commission of the robbery. She asks this court to interpret the meaning of "deadly weapon" and "used" in K.S.A. 2019 Supp. 22-4902(e)(2). To the extent these arguments require us to engage in statutory interpretation, de novo review applies. State v. Buell, 307 Kan. 604, 606, 412 P.3d 1004 (2018). Insofar as Carter argues that the district judge's finding was unsupported, we examine the record to determine whether the finding was supported by substantial competent evidence. See State v. Haskins, 262 Kan. 728, 731, 942 P.2d 16 (1997) ("Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law."). Kansas has no statutory definition of "deadly weapon." In- stead, appellate courts have adopted common-law meanings of "deadly weapon" that vary depending on the crime at issue. While the definition of "deadly weapon" when used as an element of a crime is well-settled at this point, our Court of Appeals is split on the appropriate definition of "deadly weapon" as used in KORA. The parties' arguments on the meaning of "deadly weapon" in K.S.A. 2019 Supp. 22-4902(e)(2) frame the issue as one of dia- metrically opposed objective and subjective tests. The Court of Appeals panel embraced this dichotomy in this case by disagree- ing explicitly with an earlier panel's rubric. See Carter, 55 Kan. App. 2d at 521-23 (discussing State v. Franklin, 44 Kan. App. 2d 156, 160, 234 P.3d 860 [2010]). The panel in this case applied what it termed "an objective definition of deadly weapon that includes ones calculated or likely

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State v. Carter to produce either death or serious bodily injury." 55 Kan. App. 2d at 518-19; see also Black's Law Dictionary 1909 (11th ed. 2019) (deadly weapon is "[a]ny firearm or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used, is calculated or likely to produce death"); cf. Black's Law Dictionary 1908 (11th ed. 2019) (dangerous weapon is "object or device that, because of the way it is used, is capable of causing serious bodily injury"). The panel said "that the State presented no evidence at trial that a Taser is a deadly weapon" and that "[t]here's certainly no common knowledge that a Taser is a deadly weapon in the sense that it's likely to cause death." 55 Kan. App. 2d at 519. The panel therefore concluded that "Carter didn't use a deadly weapon when she committed the robbery." 55 Kan. App. 2d at 519. Accordingly, she could not be required to register as a violent offender under KORA. The panel forthrightly stated that its objective test contra- dicted a subjective test employed by the earlier panel in Franklin, 44 Kan. App. 2d at 160. Carter, 55 Kan. App. 2d at 520-21. In that case, defendant Wayne Franklin pleaded guilty to committing an aggravated robbery and attempted aggravated robbery using a BB pistol that the victims perceived to be a handgun. The district judge concluded the BB pistol constituted a deadly weapon under KORA and ordered Franklin to register. 44 Kan. App. 2d at 157. Franklin appealed, arguing that the BB pistol was not a deadly weapon under KORA. He proposed the panel define "deadly weapon" as "an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury," the same definition of "deadly weapon" used under the aggravated battery statute. 44 Kan. App. 2d at 158. The State advo- cated for use of a "subjective test" from the aggravated robbery statute: "If the robber intends for the victim to believe the item used in the robbery is a dangerous weapon and the victim reasonably believes such object to be a dangerous weapon, then the item is considered a dangerous weapon." 44 Kan. App. 2d at 159. The Franklin panel adopted the subjective test, writing it would be "tortured and illogical" to use a subjective standard to determine

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State v. Carter guilt and a different standard when considering KORA registration. 44 Kan. App. 2d at 160. The Franklin panel also noted that it would use the terms "dangerous weapon" and "deadly weapon" interchangeably because State v. Colbert, 244 Kan. 422, Syl. ¶ 2, 769 P.2d 1168 (1989), held that the terms could be exchanged for one another in the context of the aggravated robbery statute. Franklin, 44 Kan. App. 2d at 158. Colbert was a jury instruction case distinct from the KORA controversy before us. 244 Kan. at 425. In our view, both the Court of Appeals panel in this case and in Franklin focused on the wrong law to arrive at their contrary outcomes. As alluded to above, a majority of this court has repeatedly held that KORA is a "nonpunitive civil regulatory scheme" that does not inflict additional punishment on registrants. See, e.g., Meredith, 306 Kan. at 911. In short, this makes KORA distinct from our criminal statutes. The definition of "deadly weapon" in a civil regulatory scheme is not tethered to the definitions of "deadly weapon" in separate criminal statutes. The meaning of "deadly weapon" as it appears in K.S.A. 2019 Supp. 22-4902(e)(2) is not to be found by choosing between the- oretical objective and subjective standards. Rather, we follow our usual statutory interpretation practice of giving effect to the plain meaning of clear statutory language. See State v. Spencer Gifts, 304 Kan. 755, 761, 374 P.3d 680 (2016). Black's Law Dictionary defines "deadly weapon" as "[a]ny firearm or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used, is calculated or likely to produce death." Black's Law Dictionary 1909 (11th ed. 2019). This is the same resource upon which the panel relied for its "objective" test, but we note that this definition actually includes both objective and subjective aspects. Under this definition, we hold that the district judge had substantial competent evidence to support his finding that Carter employed a deadly weapon in the aggravated robbery of the Dollar General. Carter's overall argument to the contrary is fairly perfunctory. She cites to the proprietary website of Axon, the company that manufactures Tasers, quoting its promotional statement that

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State v. Carter

Tasers save lives "because lethal force [is] not used." Her more persuasive point is that the State put on no evidence of Tasers' lethal properties. This criticism is understandable, as it is a matter of common sense that the burden would fall to the State to put forth evidence allowing the district judge to conclude Carter used a deadly weapon. But, ultimately, the weight of growing common knowledge of Tasers' danger saves the State from its misstep. The Supreme Court of Georgia has recently detailed the operation of Tasers, which have two modes, probe and drive-stun:

"[I]n probe mode, two metal darts shoot out of the front of the TASER and lodge in the target's body. The TASER then emits a series of electrical pulses through wires connected to the darts over a cycle of five seconds that disrupts the target's central nervous system and causes involuntary muscle contractions. In drive-stun mode, two electrodes in the front of the TASER are placed in direct contact with, or extremely close to, the target's skin. This method also uses a series of electrical pulses over a period of five seconds, but it functions by inducing pain rather than involuntary muscle contractions." Eberhart v. State, 307 Ga. 254, 257 n.3, 835 S.E.2d 192 (2019).

Certainly, Tasers are less likely to kill than firearms but "less lethal" is not the same as "not capable of causing death." Incidents from several jurisdictions throughout the country amply demonstrate this truth. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 901 (11th Cir. 2009) (facts viewed in light most favorable to plaintiff decedent's estate show police tased decedent "at least eight and as many as eleven or twelve times," causing decedent's death); Wil- son v. City of Lafayette, 510 Fed. Appx. 775, 776 (10th Cir. 2013) (unpublished opinion) (police officer deployed Taser one time to subdue suspect; suspect became unresponsive, could not be re- vived; suspect died of cardiac arrhythmia; parties dispute extent to which Taser, preexisting heart condition, extreme exertion contributed to death); Kapuscinski v. City of Gibraltar, 2019 WL 1863867, at *1 (E.D. Mich. 2019) (unpublished opinion) ("Two police officers responding to a domestic violence call deployed their Tasers against David Kapuscinski . . . Mr. Kapuscinski died of cardiac arrhythmia shortly thereafter. The incident is an unfor- tunate reminder that Tasers are less-lethal, not non-lethal, weapons."); Eberhart, 307 Ga. at 254-63, 835 S.E.2d 192 (affirming conviction for felony murder predicated on aggravated assault after defendant, accomplice tased handcuffed man 14 times); As Death

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State v. Carter

Toll Keeps Rising, U.S. Communities Start Rethinking Taser Use, Reuters, February 4, 2019, https://www.reuters.com/article/us-usa- taser-deaths-insight/as-death-toll-keeps-rising-u-s-communities- start-rethinking-taser-use-idUSKCN1PT0YT (accessed January 3, 2020) (at least 1,081 United States deaths followed use of Tasers; Taser deemed cause, contributing factor in 21 percent of 779 of the deaths). In addition, particularly in the context of the commission of a crime, there is no reasonable assumption that a perpetrator will use a Taser according to the manufacturer's directions and in such a way that minimizes the risk of death of the target. While Tasers and stun guns are designed so that the user may apply nonlethal force, that does not mean they cannot be misused in a lethal way or with lethal intent. The purpose of a baseball bat is to hit line drives and the purpose of a chef's knife is to dice recipe ingredi- ents, but it is obvious that a judicial finding that either is "deadly" when used in the commission of a person felony is supported by substantial competent evidence. Carter's next argument is that there was no substantial competent evidence she "used" the Taser "in the commission of" the aggravated robbery. She pins her hopes to Sanders' testimony that she saw the Taser only after Carter had already had Sanders and Reyes give her the money from the Dollar General safe. This means, in her estimation, that she did not "actively employ the Taser to change the circumstances of the crime. She did not use it to facilitate commission of the offense." Carter cites a 2013 Court of Appeals decision, State v. Dinneen, 48 Kan. App. 2d 692, 702-03, 297 P.3d 1185 (2013). Charles Din- neen tried to kidnap his ex-girlfriend before leading police on a car chase and refusing to hand over his gun after he got out of the car. Police shot Dinneen in the leg after he raised his gun during the standoff. Dinneen pleaded guilty to attempted kidnapping, criminal threat, and fleeing and eluding. 48 Kan. App. 2d at 695. The district judge found that Dinneen used a deadly weapon when he committed the crime of fleeing and eluding and thus ordered Din- neen to register as a violent offender under KORA. Dinneen appealed this finding.

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State v. Carter

The Court of Appeals overturned the finding. The panel concluded that the crime of felony fleeing and eluding began when Dinneen refused to stop after police attempted to stop his car and was completed when he got out of his car. The record showed that police knew Dinneen had a gun with him in the car, but "no evidence [was] presented to show Dinneen touched, held, or in any manner manipulated the handgun while he was inside his vehicle." 48 Kan. App. 2d at 698. This meant that Dinneen did not actually use a deadly weapon in the commission of the felony fleeing and eluding. The Dinneen decision itself cites Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), which dealt with a federal statute criminalizing the use or carrying of a firearm while drug trafficking. The Court noted that "use" can be somewhat ambiguous: "Consider the paradoxical statement: 'I use a gun to protect my house, but I've never had to use it.' 'Use' draws meaning from its context." 516 U.S. at 143. Nevertheless, the Court held that the ban on "'use' of a firearm . . . did not reach 'mere possession' of the weapon." Abbott v. United States, 562 U.S. 8, 16, 131 S. Ct. 18, 178 L. Ed. 2d 348 (2010). Instead, to convict a defendant of "use" of a firearm, the State must produce "evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 516 U.S. at 143. The Court concluded that "[a]n evidentiary standard for finding 'use' that is satisfied in almost every case by evidence of mere possession does not adhere to the obvious congressional intent to require more than possession." 516 U.S. at 144. The Court wrote:

"The active-employment understanding of 'use' certainly includes brandish- ing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender's reference to a firearm in his possession could satisfy [the statute]. Thus, a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a 'use,' just as the silent but obvious and force- ful presence of a gun on a table can be a 'use.'" 516 U.S. at 148.

Even if we treat Dinneen and Bailey as controlling, and we ignore Reyes' testimony about what she saw of the weapon in favor of Sanders' recollection that Carter displayed the Taser only

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State v. Carter after the money was handed over, there was substantial competent evidence in the record that Carter "used" the weapon in the commission of the crime of aggravated robbery. By taking the Taser out of her pocket and displaying it to Sanders, Carter brandished the weapon. The threat that action conveyed helped her to complete her crime.

Apprendi

This leaves us with Carter's appellate challenge to the district judge's deadly weapon finding as a prohibited Apprendi fact-finding. A majority of this court has consistently held that district judges' deadly weapon findings under K.S.A. 2019 Supp. 22- 4902(e)(2) do not constitute impermissible judicial fact-finding prohibited by Apprendi. See State v. Perez-Medina, 310 Kan. 525, 539-40, 448 P.3d 446 (2019); State v. Huey, 306 Kan. 1005, 1006, 399 P.3d 211 (2017), cert. denied 138 S. Ct. 2673 (2018). We do not depart from that holding today.

CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals' decision relieving Carter of her obligation to register under KORA as a violent offender. We affirm the judgment of the district court.

1 PATRICK D. MCANANY, Senior Judge, assigned.

* * *

ROSEN, J., dissenting: I respectfully dissent from the majority's conclusion that Carter was not erroneously ordered to register under the Kansas Offender Registration Act (KORA). To begin with, I disagree with the majority's underlying premise that KORA is not a sentencing statute that increases the punishment for certain convictions. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016), reversed the then short lived majority in Doe v.

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 116,223 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. Carter

Thompson, 304 Kan. 291, 373 P.3d 750 (2016), and held that Kan- sas' offender registration requirement does not constitute punishment. I believe Petersen-Beard was wrongly decided for all the reasons thoroughly set out by the court in Doe v. Thompson and Justice Lee A. Johnson's dissent in State v. Petersen-Beard. Starting from the position that KORA is a sentencing statute, the analysis in this case must ultimately follow a different path. Carter's offense of conviction, aggravated robbery, is not listed as an offense that automatically qualifies a person as a violent offender under KORA. See K.S.A. 2019 Supp. 22-4902(e). Instead, as the majority notes, Carter could only be required to register if (1) she was convicted of a person felony on or after July 1, 2006; and (2) "the court makes a finding on the record that a deadly weapon was used in the commission of such person felony." K.S.A. 2019 Supp. 22-4902(e)(2). The first requirement was fulfilled because Carter was convicted of aggravated robbery, a person felony, in 2012. See K.S.A. 2011 Supp. 21-5420. As for whether the second requirement is fulfilled, here is where our paths diverge. At the sentencing hearing, the district court complied with the State's request to find that a dangerous weapon was involved in Carter's crime of conviction. But this is not what was required by statute in order to trigger Carter's duty to register. Under K.S.A. 2019 Supp. 22-4902(e)(2), the court had to find Carter used a deadly weapon in the commission of the crime. As a result, the second requirement was not fulfilled by the court's finding at the sentencing hearing. The majority sidesteps this problem by noting the district court made such a finding in the journal entry, but this does not fix the problem. Generally, sentencing in a criminal proceeding takes place when the district court pronounces the sentence from the bench. Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007). The journal entry is merely a record of the sentence imposed, and the district court has no jurisdiction to change the sentence after pronouncement. State v. Garcia, 288 Kan. 761, 766, 207 P.3d 251 (2009). While mandatory conditions of a sentence may be an exception to this rule, special conditions, such as the provision of KORA requiring a judicial fact-finding, are not. See State v. Marinelli, 307 Kan. 768, 794-95, 415 P.3d 405 (2018)

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State v. Carter

(Rosen, J., concurring). Here, the district court did not find at the sentencing hearing that Carter committed her crime of conviction using a deadly weapon, so the finding in the journal entry is of no effect. Moreover, the district court's failure to make the necessary finding at the sentencing hearing cannot be resolved by construing the district court's "dangerous weapon" finding as a "deadly weapon" finding for the purposes of KORA. Based on the plain language of the statute, the court must find the weapon was deadly. And, while a deadly weapon is certainly dangerous, a dangerous weapon is not always deadly. Compare American Heritage Dictionary 365 (College Edition, 2d, 1982) (defining "dangerous" as "[1] [i]nvolving or fraught with danger; perilous; [2] [a]ble or apt to do harm"), with American Heritage Dictionary 368 (College Edition, 2d, 1982) (defining "deadly" as "[c]ausing or tending to cause death; lethal"); see also Black's Law Dictionary 1909 (11th ed. 2019) (defining "deadly weapon" as "[a]ny firearm or other device, instrument, material, or substance that, from the manner in which it is used or is intended to be used, is calculated or likely to produce death."). Even if the district court had properly made a deadly weapon finding at the sentencing hearing, that finding would still have been in error. Under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Thus, any finding that Carter used a deadly weapon had to be made by a jury, not a judge. Finally, even if I were to agree with the majority's position that KORA is a nonpunitive civil regulatory scheme, I question whether substantial competent evidence would support a finding that Carter used a deadly weapon in the commission of her crime of conviction. Use of a deadly weapon is not an element of aggravated robbery. See K.S.A. 2011 Supp. 21-5420. And the State did not produce evidence showing Tasers to be deadly. The majority resolves this problem by relying on "the weight of growing common knowledge of Tasers' danger," noting several

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State v. Carter instances in which the use of a Taser resulted in someone's death. 311 Kan. at 214. But the question here is not whether Tasers can be lethal or whether the public knows they can be lethal under certain circumstances. Instead, the question is whether Tasers are designed to be lethal or that Carter used the Taser in a way that was likely to be lethal. And unlike a baseball bat or a kitchen knife, which were not designed to be weapons at all, the Taser was specifically designed as "a nonlethal alternative to the use of deadly force by law-enforcement officers." State v. Carter, 55 Kan. App. 2d 511, 519, 419 P.3d 55 (2018). And this design purpose is certainly common knowledge. As a result, I would hold the district court erred in ordering Carter to register under KORA, regardless of whether KORA is punitive or not.

BEIER, J., joins the foregoing dissent.

VOL. 311 SUPREME COURT OF KANSAS 221

In re Saville

No. 121,050

In the Matter of DANIEL VINCENT SAVILLE, Respondent.

___

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding--Two-year Suspension. Original proceeding in discipline. Opinion filed March 6, 2020. Two-year suspension.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Penny R. Moy- lan, Deputy Disciplinary Administrator, was with him on the brief for the petitioner.

Michael J. Studtmann, of Law Office of Michael J. Studtmann, P.A., of Wichita, argued the cause and was on the brief for respondent.

PER CURIAM: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Daniel Vincent Saville, of Wichita, an attorney admitted to the practice of law in Kansas in 1993. On July 25, 2018, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer to the complaint on August 17, 2018. The respondent filed a probation plan on September 10, 2018, and an amended probation plan on October 1, 2018. Re- spondent personally appeared and was represented by counsel at the complaint hearing before a panel of the Kansas Board for Dis- cipline of Attorneys, which was conducted on September 24-25, 2018. During the hearing, respondent stipulated that he violated KRPC 1.7(a)(2) (2019 Kan. S. Ct. R. 308) (conflict of interest). At the conclusion of the hearing, the panel determined that respondent had violated KRPC 1.7(a)(2) (2019 Kan. S. Ct. R. 308) (conflict of interest); 1.8(e) (2019 Kan. S. Ct. R. 315) (providing financial assistance to client); 3.4(c) (2019 Kan. S. Ct. R. 353) (fairness to opposing party and counsel); and 8.4(d) (2019 Kan. S. Ct. R. 387) (engaging in conduct prejudicial to the administration of justice). The panel set forth its findings of fact and conclusions of law, along with its recommendation on disposition, in a final hearing report, the relevant portions of which are set forth below.

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In re Saville

"Stipulation

"6. During the hearing, the respondent stipulated that he violated KRPC 1.7(a)(2) (conflict of interest).

"Findings of Fact

. . . . "9. The respondent practices criminal law in Wichita[,] Kansas. At some point prior to 2006, the respondent defended A.R.'s father in a driving under the influence of alcohol case. Subsequently, when A.R. was charged with driving under the influence of alcohol, her father recommended that she hire the respondent. Following her father's advice, on June 15, 2006, A.R. hired the respondent to represent her. Through the respondent's efforts, the driving under the influence of alcohol case against A.R. was dismissed. "10. During spring, 2007, A.R. contacted the respondent again because she needed legal representation in a paternity case. Initially, the respondent referred her to another lawyer for representation in the paternity case. However, because the other lawyer was unable to assist A.R., the respondent represented A.R. in the paternity case. "11. About that same time, the respondent and A.R. commenced a sexual relationship. Whether the sexual relationship began prior to when the respondent agreed to represent A.R. in the paternity case is unclear from the record. Accord- ing to the respondent, the relationship began between February, 2007, and May, 2007. The sexual relationship between A.R. and the respondent continued, on- and-off, until August, 2015. During their sexual relationship, A.R. allowed the respondent to take nude photographs and videos of her. "12. Following the representation of A.R. in the paternity case and continuing through April, 2013, the respondent represented A.R. in approximately ten separate legal matters. While representing A.R. in multiple legal matters and during the course of their personal and sexual relationship, the respondent provided A.R. with financial assistance on a number of different occasions. "13. On September 14, 2007, the respondent commenced representation of A.R. in Butler County case number 07-TR-2403. The respondent concluded the representation on November 6, 2007. "14. On October 9, 2007, the respondent began representing A.R. in Wich- ita Municipal Court case number 07-TM-52446. That representation concluded on February 27, 2008. "15. On August 29, 2008, the respondent entered his appearance on behalf of A.R. in Butler County case number 08-TR-1914. While this case was pending, the respondent purchased A.R. a Honda automobile. The respondent completed that representation on November 5, 2008. "16. On November 10, 2008, the respondent began his representation of A.R. in Wichita Municipal Court case 08-TM-51320. In December, 2008, while the case was pending, the respondent bought A.R. another automobile, a Pontiac Grand Prix. The respondent concluded that representation on April 20, 2009.

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"17. On May 5, 2009, through May 21, 2009, the respondent represented A.R. in Sedgwick County case number 09-LM-8078. During this representation, the respondent paid A.R.'s moving expenses. "18. On August 21, 2009, A.R. filed a protection from stalking case against the respondent. On September 3, 2009, A.R. failed to appear for a hearing and the court dismissed the case. "19. On February 2, 2010, the respondent entered his appearance on behalf of A.R. in Sedgwick County case number 09-TR-21456. The respondent's representation in this Sedgwick County case was complete on August 2, 2010. "20. On September 7, 2010, the respondent began representing A.R. in Wichita Municipal Court case number 10-CM-2858. The respondent continued to represent A.R. in this case until February 6, 2012. While this case was pending, on July 10, 2011, on behalf of A.R., the respondent paid A.R.'s landlord $1,000. However, two weeks later, the respondent discovered that A.R.'s landlord gave A.R. the $1,000. After learning that the landlord gave A.R. the money, the respondent demanded that A.R. return the money to him or threatened that he would file suit against her. "21. Shortly thereafter, on August 9, 2011, A.R. filed a second protection from stalking case against the respondent. Despite the protection from stalking case, the respondent did not withdraw from his representation of A.R. in the Wichita Municipal Court case number 10-CM-2858. A.R. failed to appear for a hearing and on September 22, 2011, the court dismissed the protection from stalking case. "22. On August 30, 2011, the respondent sued A.R. for the return of the $1,000 in Sedgwick County case number 11-SC-747. On September 29, 2011, the court entered judgment for the respondent against A.R. Thereafter, on Octo- ber 26, 2011, the court denied A.R.'s motion to set aside the judgment. The respondent continued to represent A.R. in the Wichita Municipal Court case number 10-CM-2858 while the respondent's suit against A.R. was pending. "23. On June 6, 2012, the respondent entered his appearance on behalf of A.R. in Wichita Municipal Court case number 12-CM-990. The respondent concluded this representation on August 27, 2012. "24. On July 16, 2012, A.R. was charged with aggravated assault, a felony, in Butler County District Court case number 12-CR-358. A.R. requested that the respondent enter his appearance on her behalf. The respondent required A.R. to enter into a contract with him prior to when he entered his appearance. The contract included the following: 'I [A.R.] am writing this contract which Danny Saville and myself have discussed prior to this in order for him Danny Saville to represent me in criminal case # 12CR358 in Butler Co Kansas. The charge is level four person felony, agg Battery alleged against [J.Y.S.]. Danny has agreed to represent me in this matter for NO MONIES, pro bono, free—under these conditions which he stated and made clear to me ([A.R.]). Condition #1 is that I do not move back in with my boyfriend [M.S.] (Because Danny and He have had issues over me in the past), not at all while this case is pending and/or final. If I keep my word that I will not get back together and move back in with [M.S.], Danny Saville has stated he will/would represent me in case 12CR358 and not pull out or withdraw under

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In re Saville any other conditions other than the two listed. Danny has stated that if I do break our agreement by moving back in with [M.S.] that I pay him for his time spent on my case 12CR358. He has also stated that if I do break our agreement I would have to pay for the things like—discovery, pictures taken @ scene of crime accident incodent [sic], any and all statements made—time spent on case—DVS 150 hr legal asst. 75 hr by any and all witnesses involved in this case 12CR358, pictures of me, my face, condition and bruses [sic]. Danny will not under any circumstances destroy these things (items) and if I break our agreement he will let me have those things for a fee (his fee) of $150 per hour and as of 7-22-12 @ 7:49 pm he will keep track of time for billing purposes in the event it is needed for payment upon withdrawal 12CR358—taking pics and interviewing witnesses also phone calls and entry sent to Butler Co Court house [sic]. I also have to make myself avail[able] for consults and appointments however Danny will see to it that I'm given 24 hrs notice on all appointments and consults. In the event that I break this contract by moving back in with [M.S.] and/or not making myself avail[able] for all reasonable appointments—Danny may withdraw as my attorney on case #12CR358. Danny Saville has read over and signed this contract with me on the 22nd day of July 2012. Love you Danny and Thank you so much—I appreciate your time and help. Written by [A.R.] as directed by Daniel V. Saville.' The agreement was signed by A.R. and the respondent. "25. Pursuant to his agreement with A.R., on July 27, 2012, the respondent entered his appearance on behalf of A.R. in Butler County District Court case 12-CR-358. The respondent also entered his appearance on behalf of A.R. in Butler County District Court case number 11-CR-358 on an allegation of a probation violation. "26. The respondent paid the costs associated with A.R.'s $25,000 surety bond in the aggravated battery case. Additionally during the same time frame, the respondent paid for costs associated with A.R.'s medical care. Specifically, on August 13, 2012, the respondent provided A.R. with a check to pay for her medication. Instead of using the check to pay for her medication, A.R. changed the payee and used the money to pay for eyeglasses. After the respondent learned that A.R. did not use the money to pay for medication and that she changed the payee, on August 16, 2012, the respondent informed law enforcement of A.R.'s actions. The respondent withdrew from his representation of A.R. in 12-CR-358 on August 30, 2012. On September 18, 2012, A.R. was charged with forgery in Butler County case number 12-CR-505. The respondent did not represent A.R. in the forgery case. "27. On April 8, 2013, the respondent represented A.R. in Andover City Court case number 12-39357. The respondent completed the representation on May 20, 2013. "28. In August, 2015, the respondent accused A.R. of stealing a number of rings and electronic storage devices containing thousands of photographs. The respondent reported the theft to the police. During the investigation, A.R. admitted to taking the electronic storage devices, placing them in the respondent's mi- crowave to destroy the images, and disposing [of] the electronic storage devices by placing them in the respondent's trash. A.R. destroyed the devices because

VOL. 311 SUPREME COURT OF KANSAS 225

In re Saville they contained nude photographs and videos of her. Thereafter, felony theft charges were filed against A.R. in Sedgwick County District Court case number 16-CR-85, for theft of the rings and electronic storage devices. "29. On January 30, 2017, the court conducted a hearing on pretrial motions in the theft case. At that time, the judge entered an order sequestering witnesses for the upcoming jury trial. "30. On February 27, 2017, the court commenced a jury trial in the theft case. "31. The hearing panel received conflicting evidence regarding the respondent's knowledge of the sequestration order. The respondent testified he was not aware of the order. Jason Roach, Assistant District Attorney, testified that he specifically informed the respondent of this order. Further, the respondent's practice of law is limited to defending clients in traffic and criminal court. Based on all of the evidence before the hearing panel, the hearing panel accepts Mr. Roach's testimony on this subject and finds that the respondent's testimony in this regard lacks merit. The hearing panel finds that on February 27, 2017, in the jury room, Mr. Roach informed the respondent that the court ordered the sequestration of the witnesses. "32. Testimony began on February 28, 2017. J.W., an individual who was present at the respondent's house when A.R. allegedly stole the items was listed as a witness for the prosecution. The respondent was also listed as a witness for the State. "33. During the trial, J.W. testified that she took the bag of rings from the respondent's house and gave them to her then-boyfriend. J.W. also testified that her then-boyfriend informed her that he returned the bag of rings to the respondent. Because J.W. incriminated herself, the judge granted the prosecutor's request for recess. The judge directed that J.W. be sequestered in the courthouse library and that the prosecutor and defense attorney meet with him in chambers. On the record, the judge stated that no one should speak to J.W. "34. Mr. Roach informed the respondent of J.W.'s testimony and his belief that the case must be dismissed. The respondent became upset. Mr. Roach suggested that he go get his supervisor so they could discuss the options available. "35. Again, the hearing panel received conflicting evidence as to whether Mr. Roach informed the respondent during the recess that J.W. was sequestered. Again, the hearing panel accepts Mr. Roach's testimony on this subject and finds that the respondent's testimony in this regard lacks merit. The hearing panel finds that Mr. Roach told the respondent that J.W. was sequestered in the courthouse library and directed the respondent to remain in the break room until he returned with his supervisor. "36. The respondent did not remain in the break room. The respondent went with another [person] to the courthouse library and spoke with J.W. regarding her testimony. The respondent recorded the conversation with J.W. "37. Mr. Roach and his supervisor went to the break room to talk with the respondent. The break room door was locked. After court personnel unlocked the break room door, Mr. Roach and his supervisor found the room to be empty. Mr. Roach and his supervisor discovered the respondent speaking to J.W. in the courthouse library. Because the respondent violated the sequestration order, J.W.

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In re Saville informed the court that the respondent was discovered speaking with J.W. in the courthouse library. "38. In open court, the court expressed his concern to the respondent about his violation of the sequestration order. Because J.W. testified that she took the rings, the case against A.R. was dismissed.

"Conclusions of Law

"39. Based upon the respondent's stipulation and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated Rules 1.7(a)(2) (conflict of interest), 1.8(e) (conflict of interest), 3.4(c) (fairness to opposing party and counsel), and 8.4(d) (professional misconduct), as detailed below.

"Rule 1.7

"40. The respondent stipulated that he violated KRPC 1.7(a)(2). That rule provides: '(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . . (2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.' Even if there is a conflict of interest under KRPC 1.7(a)(2), a lawyer may continue to represent a client if the lawyer satisfies the provi[sions] of KRPC 1.7(b): '(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.'

"41. The respondent had a concurrent conflict of interest under KRPC 1.7(a)(2) in representing A.R. based on his own personal interest. The respondent had a personal and sexual relationship with A.R. which began after the respondent represented A.R. in the driving under the influence of alcohol case and close in time to his representation of A.R. in the paternity action. The respondent did not (and in the hearing panel's opinion, because of the basis of the conflict in this case, could not) take the steps necessary under KRPC 1.7(b) to continue the representation.

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In re Saville

"42. Additionally, after the respondent reported to law enforcement that A.R. forged the check he gave her for medication, the respondent's conflict of interest under KRPC 1.7(a)(2) was exacerbated. "43. Furthermore, evidence that A.R. filed a protection from stalking case against the respondent in 2009 and again in 2011, is yet more evidence of the respondent's significant conflict of interest in representing A.R. "44. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.7(a)(2).

"Rule 1.8

"45. Lawyers are prohibited from providing 'financial assistance to a client in connection with pending or contemplated litigation' with two limited exceptions: '(1) a lawyer may advance court costs and expenses of litigation, the re- payment of which may be contingent on the outcome of the matter; and '(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.'

"46. The respondent provided financial assistance to A.R. 'in connection with pending or contemplated litigation' when he paid her bond in the Butler County District Court case number 12-CR-358. The payment of A.R.'s bond does not fall within the limited exceptions mentioned above. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.8(e) when he paid A.R.'s bond. "47. In addition to the payment of A.R.'s bond, the record before the hearing panel is replete with references to the respondent providing financial assistance to A.R. The respondent purchased A.R. two cars, he paid her moving expenses, he paid for some of her medications, he paid for some of her other medical bills, and he repeatedly offered to give her money. Ms. Moylan argued that each instance when the respondent provided financial assistance to A.R. when litigation was pending is a violation of KRPC 1.8(e). The hearing panel disagrees. The hearing panel concludes that there must be some relationship between the financial assistance and the representation. If a relationship between the financial assistance and the representation is not required, then the language 'in connection with pending or contemplated litigation' would be unnecessary. "48. Ms. Moylan relied on In re Delaney, 300 Kan. 1090 (2014), In re Man- dlebaum, 304 Kan. 67 (2016), and In re Odo, 304 Kan. 844 (2016) in arguing that all financial assistance provided by the respondent violated KRPC 1.8(e). Those three cases can be distinguished from the case at hand. "49. First, in Delaney, the respondent provided the financial assistance to his client because the respondent's lack of diligence injured his client financially. From a review of the opinion, it appears that Mr. Delaney was attempting to right a wrong that he caused in the representation. In this case, there is no evidence that the respondent was attempting to right a financial wrong he caused in his representation of A.R.

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In re Saville

"50. In Mandlebaum and Odo, the respondents provided financial assistance to clients in anticipation that the representation would result in a financial settlement in the clients' favor. Those circumstances are not present in this case. The respondent's purchase of the two cars for A.R., his payment of her moving expenses, and his payment of some of her medication and other medical bills was not done 'in connection with pending or contemplated litigation.' The respondent's representation of A.R. was limited to a paternity action and defending A.R. in traffic and criminal court, with no anticipation that the representation would result in a financial settlement in A.R.'s favor unlike the situations in Mandle- baum and Odo. The hearing panel concludes that the respondent provided the financial assistance to perpetuate the personal and sexual relationship with A.R. "51. While the hearing panel concludes that the only financial assistance the respondent provided in violation of KRPC 1.8(e) was his payment of the bond as described above, the hearing panel would caution that providing financial assistance to a client during the period of representation, even if the financial assistance is not 'in connection with pending or contemplated litigation' is not the best practice and creates an environment which is fraught with potential conflicts of interest. "52. Because the respondent had sex with his client, the disciplinary administrator's office alleged a violation of KRPC 1.8(k). KRPC 1.8(k) provides: 'A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.' However, at the beginning of the second day of hearing on the formal complaint, Ms. Moylan moved to dismiss this rule violation. The hearing panel granted Ms. Moylan's motion to dismiss this allegation. Further, during her closing argument, Ms. Moylan argued that the respondent's conduct in beginning a sexual relationship with a client after the representation commenced was also covered by KRPC 1.7(a)(2). "53. Because references to the sexual nature of the respondent's relationship with A.R. are made throughout the record, the hearing panel is compelled to include a limited discussion of this rule and an explanation for Ms. Moylan's request to dismiss that allegation. "54. It is clear to the hearing panel that the respondent had sex with his client. And, it is also clear to the hearing panel that the respondent's sexual relationship with A.R. did not commence until after he represented her in the driving under the influence of alcohol case and after A.R. sought the respondent's assistance with the paternity case. Thus, on its face, it appears that KRPC 1.8(k) applies in this case. However, the Kansas Supreme Court adopted KRPC 1.8(k), effective July 1, 2007. The respondent's sexual relationship with A.R. started sometime between February 2007, and May 2007; clearly before this rule was effective. Accordingly, the hearing panel concludes that KRPC 1.8(k) was not in effect at the time the respondent's sexual relationship with A.R. began.

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In re Saville

"Rule 3.4

"55. Clearly, lawyers must comply with court orders. Specifically, KRPC 3.4(c) provides: ['][a] lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.' In this case, Mr. Roach told the respondent on February 27, 2016, that the court ordered the witnesses sequestered. Additionally, during his conversation with the respondent when the trial was at recess due to J.W.'s testimony, Mr. Roach told the respondent that J.W. was sequestered in the library and that he needed to remain in the break room. "56. Contrary to the sequestration order and Mr. Roach's instructions, the respondent contacted J.W. in the courthouse library and discussed her testimony. Because the respondent violated the court's order sequestering the witnesses, the hearing panel concludes that the respondent violated KRPC 3.4(c).

"Rule 8.4(d)

"57. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' Rule 8.4(d). When the respondent violated the sequestration order and spoke with J.W. during trial about her trial testimony, the respondent engaged in conduct that was prejudicial to the administration of justice. Interfering with a witness' testimony or attempting to convince a witness to change her testimony significantly prejudices justice. The hearing panel concludes that the respondent's violation of the court's sequestration order also violated Rule 8.4(d).

"American Bar Association Standards for Imposing Lawyer Sanctions

"58. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors. "59. Duty Violated. The respondent violated his duty to his client to refrain from engaging in conflicts of interest. The respondent also violated his duty to the public to maintain his personal integrity. Finally, the respondent violated his duty to the legal profession and the legal system to refrain from engaging in conduct that is prejudicial to the administration of justice. "60. Mental State. The respondent knew that his personal and sexual relationship with A.R. created a conflict of interest. Also, the respondent knowingly provided financial assistance to A.R. in connection with litigation. Finally, the respondent made contact with J.W. when he knew of the court's sequestration order. The hearing panel concludes that the respondent's misconduct was done knowingly and intentionally. "61. Injury. As a result of the respondent's misconduct, the respondent caused potential injury to his client and the legal system. The respondent caused actual injury to the legal profession.

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"Aggravating and Mitigating Factors

"62. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present: a. Prior Disciplinary Offenses. The respondent has been previously disciplined on two occasions. In 1996, the disciplinary administrator informally admonished the respondent. In 2011, the respondent participated in the attorney diversion program for having violated KRPC 8.4(b) based on his convictions of two counts of possession of drug paraphernalia. b. Selfish Motive. The respondent's motivation in this case was his personal and sexual relationship with A.R. The hearing panel concludes that the respondent's misconduct was motivated by selfishness. c. A Pattern of Misconduct. The respondent's conflicts of interest spanned many years. Thus, the hearing panel concludes that the respondent engaged in a pattern of misconduct. d. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.7(a)(2) (conflict of interest), KRPC 1.8(e) (conflict of interest), KRPC 3.4(c) (fairness to opposing party and counsel), and KRPC 8.4(d) [(]professional misconduct). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. e. Vulnerability of Victim. Based on the personal and sexual relationship between the respondent and A.R., the hearing panel concludes that A.R. was vulnerable to the respondent's misconduct. f. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1993. At the time the misconduct began, the respondent had been practicing law for approximately 14 years.

"63. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: a. Personal or Emotional Problems if Such Misfortunes Have Contrib- uted to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from personal and emotional problems. The respondent has a history of drug addiction. The respondent actively used illegal drugs during the early years of his relationship with A.R. Shortly before the hearing on the formal complaint, the respondent began therapy. At that time, he had participated in three sessions with the therapist. In therapy, the respondent has been working to overcome dys- functional behavior. However, the relationship between the respondent's personal problems and the misconduct appears to be remote. Further, the benefits which the respondent may obtain from therapy have not yet been realized as the respondent is new to therapy.

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b. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His Acknowledgment of the Trans- gressions. The respondent fully cooperated with the disciplinary process. Addi- tionally, the respondent stipulated that his personal and sexual relationship with a client resulted in a violation of KRPC 1.7(a)(2). Finally, the respondent made it clear that he understands the problems associated with developing a personal and sexual relationship with a client. While the respondent did not acknowledge the wrongful nature of contacting J.W. when she was sequestered, the hearing panel concludes that defending that allegation does not negate his cooperation. c. Previous Good Character and Reputation in the Community In- cluding Any Letters from Clients, Friends and Lawyers in Support of the Char- acter and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Wichita, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. d. Remorse. During his testimony, the respondent apologized for 'his part' in the misconduct. e. Remoteness of Prior Offenses. The misconduct which gave rise to the respondent's discipline in 1996 is remote in time and the misconduct which gave rise to the respondent's participation in the attorney diversion program in 2011 is remote in character to the misconduct in this case.

"64. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:

'4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client. '6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. '6.31 Disbarment is generally appropriate when a lawyer: (a) intentionally tampers with a witness and causes serious or potentially serious injury to a party, or causes significant or potentially significant interference with the outcome of the legal proceeding; . . . '6.32 Suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.'

"Recommendation

"65. Ms. Moylan recommended that the respondent's license to practice law be suspended for a period of one year.

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"66. Counsel for the respondent recommended that the respondent's plan of probation be adopted and that he be allowed to continue to practice law, subject to the probation terms.

"Consideration of Probation

"67. When a respondent requests probation, the hearing panel is required to consider Kan. Sup. Ct. R. 211(g)(3), which provides: 'The Hearing Panel shall not recommend that the Respondent be placed on probation unless: (i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.' "68. While the respondent developed a workable plan, provided the plan to the hearing panel and Ms. Moylan 14 days prior to the hearing, and put the plan into place, probation is not appropriate in this case. The respondent's plan is not substantial nor detailed. The misconduct, in this case, cannot be corrected by probation. Finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas.

"Recommendation of the Hearing Panel

"69. Based on the record before it, the hearing panel unanimously recommends that the respondent's license to practice law be suspended for a period of six months. The hearing panel further recommends that the respondent be required to undergo a reinstatement hearing under Rule 219 prior to the consideration of reinstatement of his license to practice law. "70. The hearing panel also recommends that the Supreme Court order the respondent to pay the costs of this action in an amount to be certified by the disciplinary administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule

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211(f) (2019 Kan. S. Ct. R. 257). Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint to which he filed an answer; he was given adequate notice of the hearing before the panel at which he appeared and was represented by counsel; and he was given adequate notice of the hearing before this court at which he appeared and was represented by counsel. After the panel's final hearing report, respondent filed exceptions, as well as a brief, claiming that there was not clear and convincing evidence to support the panel's finding that he had violated Rules 3.4(c) and 8.4(d). Before discussing Respondent's exceptions, we pause to acknowledge that the Disciplinary Administrator took the position before both the panel and this court that it is a per se violation of Rule 1.8(e) for an attorney to pay a client's criminal bond. Further- more, it is unclear from his filed exceptions and brief whether Re- spondent actually challenged this position or the panel's findings of a Rule 1.8(e) violation. Certainly, the issue was not adequately briefed by Respondent. In re Bishop, 285 Kan. 1097, 1106, 179 P.3d 1096 (2008) ("[T]he general rule [is] that an issue not briefed on appeal is deemed waived or abandoned."); In re Coggs, 270 Kan. 381, 396, 14 P.3d 1123 (2000) ("We, therefore, decline to consider the two issues raised but not briefed."). Then, at oral argument, Respondent explicitly agreed with the Disciplinary Administrator's interpretation of Rule 1.8(e) and conceded that Respondent's payment of his client's criminal bond violated the rule. We note here that this court has never held that a lawyer paying a client's bond or bail is a per se violation of Rule 1.8(e). Indeed, there is contrary authority suggesting that in certain circumstances, such conduct may be appropriate. See American Bar Association Formal Opinion 04-432 (January 14, 2004) ("A lawyer may post, or arrange for the posting of, a bond to secure the release from custody of a client whom the lawyer represents in the matter with respect to which the client has been detained,

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In re Saville but only in those rare circumstances in which there is no significant risk that her representation of the client will be materially limited by her personal interest in recovering the amount advanced."); Rotunda & Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility 2017-2018, at 508 (commenting on model rule 1.8(e) and concluding that "[w]hile bail is an expense of litigation, the Rules do not give the lawyer carte blanche authority to advance bail funds to the client"). Given, however, the Respondent's concession at oral argument that he violated Rule 1.8(e) by paying his client's criminal bond; the Respondent's failure to challenge the panel's findings on this point in his filed exceptions and brief; and the particular facts and circumstances of this case, we have no difficulty concluding that Respondent did in fact violate Rule 1.8(e). As such, we need not rule on the correctness of the Disciplinary Administrator's position that Rule 1.8(e) creates an absolute bar to an attorney posting bail for a client in every circumstance. Respondent does challenge the evidence supporting the panel's findings that he violated Rule 3.4(c) and 8.4(d). These rule violations arose out of the same conduct. The crucial factual finding below was that Respondent knowingly violated a court's sequestration order when he spoke with witness J.W. in the courthouse library. The panel found this conduct violated both rules. Respondent challenges the evidence supporting this finding of fact. He does not claim that such conduct, if proved by clear and convincing evidence, would not violate the rules. Respondent advances two basic arguments to claim the evidence is insufficient to support the factual finding that he knowingly violated a sequestration order. First, he asserts the evidence in the record demonstrates that he did not know the witness was sequestered. Second, he claims the evidence shows that he believed the case had been dismissed at the time he spoke to J.W., so any sequestration order would have expired. We will adopt the factual findings of a disciplinary panel "where amply sustained by the evidence, but not where it is against the clear weight of the evidence." In re Angst, 278 Kan. 500, 504, 102 P.3d 388 (2004). If a respondent fails to take exceptions to the panel's findings, they are deemed admitted. "On the

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In re Saville other hand, when exception is taken, this court must examine the record and determine if a rational factfinder could have found the determination to be highly probable." In re Swanson, 288 Kan. 185, 187, 200 P.3d 1205 (2009). "When the panel's findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. Therefore, we do not reweigh the evidence or pass on credibility of witnesses." In re Lober, 276 Kan. 633, 637, 78 P.3d 442 (2003). The record contains significant evidence that Respondent knew there was a sequestration order. The prosecutor testified he discussed the sequestration of J.W. with Respondent multiple times. The prosecutor recounted that prior to jury selection, he was preparing the Re- spondent and another witness for trial and he explained the pretrial sequestration order to both witnesses at that time. The prosecutor detailed that he distinguished between appropriate conversation with other witnesses—such as the weather or sports—and impermissible topics, including testimony. In video captured by Respondent in the library, a senior attorney in the prosecutor's office stated several times that the prosecutor told Respondent to stay away from J.W. Although Respondent protested, the prosecutor emphasized "she is sequestered. I said those words." The prosecutor's letter to the office of the Disciplinary Administrator consistently recounted these events, stating that the prosecutor "expressly told [Saville] that [J.W.] was sequestered in the library and that he was to remain in the breakroom." The same video clearly demonstrates that Respondent knew the case was ongoing when he spoke with J.W. The video's transcript includes this exchange between Respondent and the senior prosecutor, Tom Weilert:

"MR. SAVILLE: . . . If you dismiss the case now, jeopardy is attached, you can't bring it again. And—and that— "MR. WEILERT: If we proceed with it now she's going to be found not guilty. "MR. SAVILLE: Yeah, but I—I haven't had a chance to testify. You—this can be—you can clear that up with the facts. I mean, she took the stuff."

This conversation shows that Respondent knew the case had not been dismissed. He hoped it could be salvaged with his testimony

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In re Saville and was concerned about possible double jeopardy issues if it were to be dismissed. Taking all of this into consideration, it is clear to us the panel simply did not credit Respondent's claims that he either didn't know J.W. was sequestered or believed the case had been dismissed. The evidence in the record is not only sufficient but also clear and convincing to support the panel's credibility judgments and findings of fact. The Final Hearing Report recommended we suspend Respond- ent's license to practice law for a six-month period, with a Supreme Court Rule 219 reinstatement hearing to follow. See 2019 Kan. S. Ct. R. 270. Before us, the Disciplinary Administrator recommended a one-year suspension with a reinstatement hearing. Respondent requested a period of probation. These recommendations are just that—recommendations. See In re Biscanin, 305 Kan. 1212, 1229, 390 P.3d 886 (2017). We further consider that despite the overwhelming evidence, Respondent has refused to accept responsibility for the violations under KRPC 3.4(c) and 8.4(d).

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Daniel Vincent Saville be and he is hereby disciplined by suspension from the practice of law in the state of Kansas for a period of two years, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2019 Kan. S. Ct. R. 240) for violations of KRPC 1.7(a)(2), 1.8(e), 3.4(c), and 8.4(d). Should the respondent seek reinstatement, he must undergo a reinstatement hearing under Supreme Court Rule 219 (2019 Kan. S. Ct. R. 270). A minority of the Court would have accepted the Disciplinary Administrator's recommendation of a one-year suspension followed by a Rule 219 hearing.

IT IS FURTHER ORDERED that the Respondent shall comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

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1 PATRICK D. MCANANY, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 121,050 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.