Opinion
No. 107,955.
2013-08-29
STATE of Kansas, Appellee, v. Lewis JOHNSON, Appellant.
Appeal from Crawford District Court; A.J. Wachter, Jr., Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Crawford District Court; A.J. Wachter, Jr., Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Lewis Johnson appeals his theft conviction. Johnson contends the trial court erred by giving a particular jury instruction on reasonable doubt, by the court's acceptance of the verdict, and by its use of Johnson's criminal history at sentencing. We affirm the conviction and sentence.
Factual and Procedural Background
The State of Kansas charged Johnson with theft of a diamond ring. Prior to trial, Johnson filed his proposed jury instructions. Johnson cited PIK Crim.3d 52.02 as the source for his reasonable doubt instruction, and we have italicized the word in dispute:
“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 made by the State you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.” (Emphasis added.)
When Johnson filed his proposed instructions, PIK Crim.3d 52.02 (2010 Supp.) actually provided: “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.)
The trial court instructed the jury using Johnson's version of the instruction which used the word “any” rather than the PIK version which used the word “each.” Johnson did not object to the instruction. Of note, the trial court also gave an elements instruction informing the jury that in order to convict Johnson of theft, “ each of the following claims must be proved.” (Emphasis added.)
When the jury returned from deliberations, the trial court asked the foreperson if it had reached a verdict. The foreperson said it had. The trial court asked the foreperson to hand the verdict form to the clerk, who (at the trial court's instruction) read it aloud, stating in part: “We, the jury, find the defendant guilty of the crime of theft.” The trial court then inquired: “Does anyone want the jury polled?” Both counsel declined, and the trial court accepted the jury's verdict. The presentence investigation report showed that Johnson had one prior person felony and five prior nonperson felonies, for a criminal history score of C. Johnson did not object to his criminal history, and the trial court sentenced him accordingly. Johnson appeals.
Reasonable Doubt Instruction
Johnson contends that substitution of the word “any” for the word “each” in the reasonable doubt instruction was erroneous. He argues, “[t]he use of the word ‘any’ in the final sentence of the instruction told the jury that, in order to find Mr. Johnson guilty, it had only to find proof beyond a reasonable doubt of one of the State's claims.” Johnson also claims that “because the Kansas clear error standard incorporates harmless error review, it conflicts with the federal structural error standard, which is the appropriate standard to apply.”
According to our Supreme Court, “ordinarily when the party challenging an instruction given by the district court failed to object to the instruction given, we review the instruction to determine whether it was clearly erroneous. K.S.A. 22–3414(3); [State v.] Williams, 295 Kan. [506,] 515 [, 286 P.3d 195 (2012).]” State v. Jones, 295 Kan. 804, 811, 286 P.3d 562 (2012). There is an exception for invited error, which we address below. See 295 Kan. at 811–12, 286 P.3d 562. Considering our Supreme Court's recent restatement of the standard in Williams, 295 Kan. at 515, 286 P.3d 195, we will continue to apply it here. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied, 294 Kan. –––– (2012) (Court of Appeals duty to follow Supreme Court precedent).
“To determine whether a district court's giving of or failure to give a jury instruction was clearly erroneous under K.S.A. 22–3414(3), the reviewing court must necessarily first determine whether the instruction was erroneous. This review for error presents a legal question subject to unlimited review.
“In applying K.S.A. 22–3414(3), the reviewing court engages in a reversibility determination only after determining the district court erred in giving or failing to give a particular instruction. The test to determine whether an instruction error requires reversal is whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment, because it requires a review of the entire record, is de novo.” Jones, 295 Kan. 804, Syl. ¶¶ 1–2, 286 P.3d 562.
Our court approved a reasonable doubt instruction using “any” instead of “each” in State v. Beck, 32 Kan.App.2d 784, 785, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). We rejected the “argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven.” 32 Kan.App.2d at 787, 88 P.3d 1233. Our court came to essentially the same conclusion in State v. Womelsdorf, 47 Kan.App.2d 307, 333–34, 274 P.3d 662,petition for rev. filed May 10, 2012, which also commented on a case Johnson cites, Miller v. State, No. 103,915, 2012 WL 401601, unpublished opinion filed February 3, 2012, petition for rev. filed February 22, 2012. 47 Kan.App.2d at 331, 274 P.3d 662.Womelsdorf pointed out that the instruction in Miller had “transposed the words “each” and “any” and had not considered Beck. 47 Kan.App.2d at 331–32, 274 P.3d 662. We believe Miller is clearly distinguishable for the reasons set forth in Womelsdorf.
While the “current approved version of PIK Crim.3d 52.02 provides the most accurate test for reasonable doubt,” Womelsdorf 47 Kan.App.2d at 334, 274 P.3d 662, we again hold the reasonable doubt instruction at issue here was not erroneous. Reading the instruction as a whole, the use of “any” suggested the jury should consider “all” the elements, not “one” as Johnson argues. See Beck, 32 Kan.App.2d at 787, 88 P.3d 1233 (“appellate courts must consider the instructions as a whole”). Johnson's reading is also contrary to the elements instruction given in this case, which directed the jury to decide “each” of the elements. “[W]e presume the jury follows the instructions given. [Citation omitted.]” State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012).
Moreover, even if the reasonable doubt instruction was erroneous, Johnson has not shown the instruction was clearly erroneous. Given his argument, Johnson must establish that at least one element was not supported by evidence beyond a reasonable doubt. Only in that case could we be firmly convinced that the jury would have reached a different verdict. But Johnson relies on his structural error argument, leaving this point unaddressed. We will not canvass the elements without briefing and therefore deem the issue waived or abandoned on appeal. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Finally, we “need not determine whether the district court's ... instruction was clearly erroneous because [the] challenge to the instruction is precluded by the rule of invited error.” Jones, 295 Kan. at 811–12, 286 P.3d 562. Johnson “did not merely defend the use of the instruction but instead proposed the very instruction that he now claims to be erroneous.” State v. Gallegos, 286 Kan. 869, 877–78, 190 P.3d 226 (2008) (challenge to reasonable doubt instruction). Therefore, in addition to the reasons set out above, “[a]ny potential prejudice that might have arisen from the use of the instruction in question is outweighed by this fact.”
Acceptance of the Verdict
For his second issue on appeal, Johnson contends the trial court did not “inquire whether the verdict read in open court is the jury's verdict.” Noting “K.S.A. 22–3421 sets forth the procedure for obtaining a jury's verdict,” Johnson asks us to exercise unlimited review. The State counters that we should not consider the issue for the first time on appeal.
The right to a unanimous jury verdict in Kansas is statutory, not constitutional. See State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007). This court has twice refused to consider a similar issue where, as in the present case, a defendant declined the trial court's invitation to poll the jury. See Womelsdorf, 47 Kan.App.2d at 329–30, 274 P.3d 662;State v. Dunlap, 46 Kan.App.2d 924, 934–35, 266 P.3d 1242 (2011), petition for rev. filed December 30, 2011. “Polling the jury would have achieved the purpose of ensuring [the defendant's] statutory right to a unanimous verdict.” Dunlap, 47 Kan.App.2d at 329, 274 P.3d 662.
Because Johnson specifically declined polling of the jury, we will not consider the issue.
Criminal History
Johnson contests the use of his criminal history at sentencing but concedes the issue was decided against him in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We are duty bound to follow our Supreme Court's precedent unless that court indicates it is departing from its previous position. See Ottinger, 46 Kan.App.2d at 655, 264 P.3d 1027. Johnson does not suggest that our Supreme Court is changing its longstanding precedent but candidly notes that he raises the issue for purposes of federal review. This issue is without merit.
Affirmed.