State v. Myers

No. 105,252

279 P.3d 739

June 22, 2012

Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.
Boyd K .Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.



Per Curiam:

Derrick A. Myers appeals his conviction by a jury of two counts of aggravated robbery. He raises multiple issues on appeal including alternative means, denied replacement of counsel, jury instructions, evidentiary instructions, cumulative error, and proof of his criminal history which included juvenile adjudications.

On May 23, 2010, Emma Staib, Karli Sauer, and Colbey Stull met one of Sauer’s friends who went by the nickname of C-Sap. Staib testified she later learned C-Sap was Myers. Staib testified they had stopped at a gas station for cigarettes where Sauer saw Myers and they agreed to meet at another location so Sauer could sell Myers a cell phone because Myers’ was broken. Staib said that when they met later that evening, they picked up Myers and another girl to give them a ride home. The stories then diverge.

Staib said she was driving and as they left the parking lot, a man stepped in front of the car and they had to stop. Myers said that he would get out and take care of the guy. However, when Myers got out of the car, he pulled out a gun and pointed it at Staib and told her to take the keys out of the ignition. Myers took Sauer’s and Staib’s purses from the car trunk. There was also a laptop computer in the trunk. Staib testified to all the things she had in her purse including a camera, credit cards, and a MP3 player. Staib testified the robbers left the scene on foot. Sauer called the police.

Sauer testified the meeting with Myers at the gas station was planned so she could sell him a cell phone. Her story patterned most of Staib’s testimony, and she added that Myers took her phone, purse, a wallet containing $400 and a school ID, and her car keys. Sauer gave a different story about whether she bought cigarettes and if she bought some for Myers. Sauer said it was a couple hours after they left the gas station before they met Myers in the parking lot. Sauer admitted to having purchased marijuana from Myers on previous occasions.

Stull’s testimony was fairly close to that of Sauer and Staib. He added that when Myers pulled the gun on them he heard Sauer tell Myers that she wanted her “Simms card” out of her phone before he took it. Stull said Myers responded, “[D]on’t make me shoot you Karli, I don’t want to kill you.” Stull testified he had not received any money from Sauer that day. However, Sauer had previously testified that she had given Stull $120.

Myers took the stand in his own defense. Myers testified he was a drug dealer and Sauer had purchased cocaine and marijuana from him. Myers testified that he met Sauer at the gas station on the day in question to sell her marijuana. When they met at the gas station Myers sold Sauer marijuana. Sauer then asked if Myers would front her some crack cocaine and she would pay him later, which he did. Myers said that after about 3 hours, he began texting and calling Sauer because he wanted the money for the cocaine.

Once Myers finally contacted Sauer, she told him that she only had about $100 of the $300 she owed him. They agreed to meet in a parking lot near where Myers was staying. Myers testified that when Sauer arrived at the parking lot, she paid him $100 for the cocaine and also $150 for some illegal narcotic pills. When he asked Sauer how long it would take for her to pay off the rest of the cocaine, she told him he could hold their purses and cell phones and iPods for a couple of hours while she got the rest of the money. Myers did not contest that he was in possession of all the property but contended he was holding it as collateral until the rest of the drug money was paid. Myers testified he never had a gun that evening and never used a gun to threaten the group.

After Myers left the scene, Sauer contacted the police. When the police arrived, Sauer told them she only knew the robber by his street name, “C-Sap.” One of the officers knew Myers by that street name and drove to his residence. The officers stopped a car driven by Myers’ mother–Myers was a passenger. All three of the victims identified Myers and a woman with him as the perpetrators of the robbery in the parking lot. Myers had some of the property in his possession, but officers did not recover a gun.

The State charged Myers with three counts of aggravated robbery, one count each for Sauer, Staib, and Stull. Mark Rudy was appointed to represent Myers. A jury acquitted Myers of the aggravated robbery charge involving Sauer but convicted him on the charges involving Staib and Stull. The trial court denied Myers’ request for a departure sentence. The court gave Myers a presumptive sentence of 96 months’ incarceration on first conviction and a consecutive term of 55 months’ incarceration on the second conviction for a total sentence of 151 months’ incarceration. Myers appeals.

First, Myers raises an alternative means argument concerning both of his convictions for aggravated robbery.

Alternative means is when there are materially different ways of committing a particular crime based on the statutory definition or elements of the offense. State v. Schreiner, 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011). When a statute creates alternative means of committing a crime, the State must present sufficient evidence to support each means submitted to the jurors in the instructions. The jurors must be convinced beyond a reasonable doubt that the defendant committed the offense, but the jurors need not agree on which alternative means has been proven. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010).

K.S.A. 21-3427 defines aggravated robbery as “a robbery, as defined in K.S.A. 21-3426 and amendments thereto, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3426 defines robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.”

In State v. Reed, 45 Kan. App. 2d 372, 385, 247 P.3d 1074 (2011), the court held that aggravated robbery, as defined in K.S.A. 21-3427, was an alternative means crime because a person can commit the offense in either of two different ways: (1) by inflicting bodily harm on the victim while taking the victim’s property or (2) by taking the property while armed with a dangerous weapon. Although the Reed decision does not address the particular language at issue here, other decisions are on point.

Myers argues that whether he took property “from the person or presence” of the Staib creates an impermissible alternative means situation. In State v. Boyd, 46 Kan. App. 2d 945, Syl. ¶ 3, 268 P.3d 1210 (2011), pet. and cross-pet. for review filed (pending), the court rejected that argument. The Boyd court held that “taking property from the person of the victim and taking property from the presence of the victim do not constitute alternative means of committing aggravated robbery” under K.S.A. 21-3427 because the robbery statutes would criminalize the same sort of conduct had the term “person” been omitted.

“The essence of the crime is forcibly taking property when a person is present. The term ‘from the person or the presence’ of the victim describes the proximity of the property and the individual. It does so with phraseology that overlaps. Taking property from the presence of the victim (who need not be the owner of whatever the perpetrator seizes) describes an area in the general vicinity of the victim. Taking property from the person of the victim refers to the immediate environs of the body such as a pocket, a purse, or the hands. Thus, a taking ‘from the person’ is actually encompassed within a taking ‘from the presence’ of the victim. The robbery and aggravated robbery statutes would criminalize the same range of conduct even if the phrase “the person” had been omitted from the definitions of those crimes. Accordingly, taking property from the person of the victim and taking property from the presence of the victim do not constitute alternative means of committing aggravated robbery.” 46 Kan App. 2d at 950.

Myers also argues the language in both counts where he was charged with taking property “by force or threat of bodily harm to a person” presents another situation of impermissible alternative means. Myers relies on State v. Hendrix, 289 Kan. 859, 862, 218 P.3d 40 (2009), where the court held that “use of force” equated to physical contact. In Hendrix, the court held that a defendant is only entitled to an instruction on defense of another when there is ‘”use of force,'” which the court interpreted to mean actual physical contact as opposed to a mere threat or display of force. 289 Kan. at 862. The court addressed “use of force” in the context of self-defense and when a person is justified in the use of force against another.

However, the Kansas Legislature amended the definition of “use of force,” effective April 29, 2010, to address Hendrix as follows:

“(1) ‘Use of force’ means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another.” K.S.A. 2010 Supp. 21-3221(a); L. 2010, ch. 124, sec. 1.

Under the revised statute, a mere threat to cause death is sufficient to satisfy the element of “use of force.” In this case, Myers displayed the gun, pointed it at the victims, and demanded their property and the items in the trunk. Stull testified he heard Myers say, “[D]on’t make me shoot you [Sauer], I don’t want to kill you.”

As an aside, the State argues it is not required to present sufficient evidence of all means when overwhelming evidence supports a finding of guilt on one means. In Wright, 290 Kan. at 207, our Supreme Court reaffirmed the requirement in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), that sufficient evidence must support each alternative means. In Timley, the court treated force and fear as alternative means. 255 Kan. at 288-89. However, in Wright, the court appeared to modify Timley’s distinction and treated K.S.A. 21-3502(a)(1)(A)’s “force or fear” element as a single means and treated “unconsciousness” in K.S.A. 21-3502(a)(1)(B) as a different means. In fact, in the Wright court’s analysis of committing a rape by alternative means, the court did not discuss the existence of the use of force to facilitate the rape. 290 Kan. at 206-07.

The State argues that Wright was wrongly decided because it is contrary to the view expressed by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 59-60, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). However, we are duty bound to follow Kansas Supreme Court precedent absent an indication that it is departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31, rev. denied 292 Kan. 967 (2011).

Next, Myers argues the trial court abused its discretion in denying his motion to replace counsel, Mark Rudy. Myers argues Rudy refused to present a defense and instead argued strenuously with him that he should accept a plea. Myers argues that it was only after he researched the case that Rudy presented a defense. Myers also complains that Rudy told the trial court that in counsel’s opinion the jury would not concern itself with discrepancies in the testimony of the State’s witnesses or be sympathetic to him as a drug dealer. Myers contends that if he had an attorney who had done his or her job, he would have received an even more favorable verdict than acquittal on just one of the charges.

In response, the State contends that the trial court’s denial of the Myers’ motion to discharge Rudy was reasonable under the circumstances. We agree.

“A district court’s refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the district court.” State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007). If a district judge has a reasonable basis to conclude that appointed counsel could provide “effective aid in the fair presentation of a defense,” then his or her decision should not be disturbed on appeal. 285 Kan. at 196. Moreover, Myers bears the burden of proving the trial court abused its discretion in this case. See 285 Kan. at 196.

A trial court is not required to appoint new counsel unless a defendant shows a justifiable dissatisfaction with his or her current counsel. See State v. Jasper, 269 Kan. 649, 654, 8 P.3d 708 (2000). Justifiable dissatisfaction can occur when there is irreconcilable conflict, a conflict of interest, or a complete breakdown of communication between a defendant and his or her attorney. 269 Kan. at 654.

Although a complete breakdown of communication can amount to a violation of the United States Constitution’s Sixth Amendment right to effective counsel, not all disagreements between a defendant and his or her attorney about how to proceed in a case amount to a complete breakdown in communication. See State v. Sykes, 35 Kan. App. 2d 517, 530, 132 P.3d 485, rev. denied 282 Kan. 795 (2006). Furthermore, a defendant cannot refuse to cooperate with his or her attorney and then argue a complete breakdown of communication. See State v. Ferguson, 254 Kan. 62, 73-74, 864 P.2d 693 (1993).

The trial court went to great pains to understand exactly the situation between Myers and Rudy–considering the issue on more than one occasion. At one hearing, the trial court cleared the courtroom multiple times so both Myers and Rudy could freely discuss Myers complaints and the defense he had requested. Although Rudy acknowledged that he had recommended that Myers should accept the State’s plea offer after reviewing the State’s evidence, Myers’ criminal history, and Myers defense theory, Rudy also indicated he was prepared to go to trial. Likewise, Rudy promised, “I will do my very best with what I have to work with as I always do.” In the end, Rudy honored Myers’ wishes to proceed to trial.

At the August 20, 2010, hearing on Myers’ motion for change of counsel, the trial court discussed State v. Smith, 291 Kan. 751, 247 P.3d 676 (2011), and the fact that it was on petition for review at the time. Unlike Smith–where an appointed attorney refused to put on truthful, relevant evidence at trial because he believed his client to be guilty–there is no evidence in the present case, nor does Myers cite any, that Rudy refused to present evidence or otherwise failed to advocate on behalf of Myers at trial. Although it was Rudy’s professional opinion that it was unlikely Myers would ultimately prevail under Myers’ theory of defense, the record reveals that Rudy did his best to defend Myers.

Based on our review of the record in the present case, we find that Myers has not shown a complete breakdown in communication with Rudy. Instead, the record reveals communication between Myers and Rudy in Rudy’s attempt to get Myers to take a plea. When Myers would not budge on Rudy’s advice, Rudy cooperated, presented the defense requested by Myers, and did everything Myers asked of him. Rudy diligently represented Myers. Ultimately, the record shows that Rudy appropriately defended Myers at the trial and obtained an acquittal on one of the charges. We find no abuse of discretion in the trial court’s denial of Myers’ request for appointment of new counsel.

Next, Myers claims the trial court erred by denying his request for an instruction on the lesser included offense of robbery. We disagree.

The rules about lesser included jury instructions are clear. The trial court shall instruct the jury on all lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. See K.S.A. 22-3414(3); State v. Perez, 292 Kan. 785, Syl. ¶ 4, 261 P.3d 532 (2011). This duty to instruct applies even if the evidence is weak, inconclusive, and consists solely of the defendant’s testimony. State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008).

It is important to note here that if a defendant does not object to the trial court’s giving or failure to give an instruction on lesser included offenses, it is reversible error only if the giving of the instruction or the failure to give the instruction was clearly erroneous. See K.S.A. 22-3414(3); State v. Hoffman, 288 Kan. 100, 104, 200 P.3d 1254 (2009). Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. State v. Magallanez, 290 Kan. 906, 918-19, 235 P.3d 460 (2010).

During the jury instruction conference, Myers requested that the trial court give his proposed instruction on the lesser included offense of robbery. The distinction between simple robbery under K.S.A. 21-3426 and the aggravated robbery charge at issue here is whether Myers was armed with a dangerous weapon while committing the crime of robbery. See K.S.A. 21-3427. The judge denied Myers’ request, ruling,

“[I]t’s just hard for me to see how a jury could reasonably conclude beyond a reasonable doubt that Mr. Myers is guilty of robbery or theft or criminal deprivation of property. They would have to disbelieve everyone because, . . . as Mr. Rudy points out, they don’t have to believe in the totality of the testimony of one person and decide to reject the totality and pick and choose, but it’s not the theory of defense, . . . again, I can’t see a way in which a jury would say, well, there was no gun there, but we’re going to go ahead and find him guilty of robbery because we think all of the evidence supports all the other elements. Again, they would have to disbelieve all the witnesses.”

We believe the trial judge was correct. Neither Myers nor the victims testified there was a simple robbery. Myers either committed an aggravated robbery or he was innocent. The jury found he was guilty of aggravated robbery. There was substantial evidence to support the verdict.

Next, Myers argues the trial court erred by failing to give a limiting instruction when the jury heard evidence that he sold drugs to Sauer and Staib on several other occasions. He contends that with a limiting instruction, there is a real possibility the verdict would have been different.

K.S.A. 2011 Supp. 60-455 governs the admission of evidence of other crimes or civil wrongs in this case:

“(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.
. . . .
“(d) Except as provided in K.S.A. 60-445, and amendments thereto, in 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 Kansas Statutes Annotated, or K.S.A. 21-6104, 21-6325, 21-6326, or 21-6418 through 21-6421, and amendments thereto, 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.”

If a district court admits K.S.A. 60-455 evidence, the court must provide a limiting instruction to the jury, identifying the specific purposes for which that evidence may be considered. State v. Gunby, 282 Kan. 39, Syl. ¶ 2, 144 P.3d 647 (2006); see Magallanez, 290 Kan. at 918-19.

Preliminarily, it is questionable whether Myers preserved this issue for appeal. When a defendant fails to object to the admission of K.S.A. 60-455 evidence at trial, the defendant may not challenge the admission of that evidence on appeal. State v. Marler, 290 Kan. 119, 122-23, 223 P.3d 804 (2010); State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Following King, at least one panel of this court has applied the same rule to a defendant’s challenge to the failure to provide a limiting instruction for K.S.A. 60-455 evidence. See State v. Whetstone, 43 Kan. App. 2d 650, 653-54, 229 P.3d 399 (2010) (declining to review district court’s failure to provide a limiting instruction for K.S.A. 60-455 evidence when defendant failed to file a motion in limine to exclude that evidence and failed to object to admission of that evidence at trial).

Here, Myers failed to object to testimony that he was a drug dealer and actually embraced the testimony in support of his theory of defense that he was only taking the property as collateral for prior drug debts. These factors support a finding that Myers failed to preserve this issue for appeal and there was never any intention to object to this testimony.

Our Supreme Court has consistently applied the clearly erroneous standard in the context of the failure to provide a limiting instruction for K.S.A. 60-455 evidence. See, e.g., Magallanez, 290 Kan. at 918; Gunby, 282 Kan. at 58-59; see also State v. Mason, 206 P.3d 898, unpublished opinion filed May 15, 2009, rev. denied 289 Kan. 1283 (2010), slip op. at 5-10 (reviewing defendant’s claim that district court failed to give limiting instruction for K.S.A. 60-455 evidence under clearly erroneous standard, but discussing the difficulty in applying that standard when defendant neither requested the instruction, objected to its omission, or suggested what would have constituted an appropriate limiting instruction). The failure to give a jury instruction is clearly erroneous only if we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction been given. State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).

The facts that preclude our appellate review are the same facts we use in applying the clearly erroneous standard to the circumstances in this case. These factors weigh heavily against finding clear error. We conclude there is no real possibility the jury would have returned a different verdict if a limiting instruction had been given. The fact that Myers was a drug dealer was essential to his theory of defense, and his prior criminal activity was critical to his claim that he took the property as collateral.

Accordingly, we conclude the district court did not clearly err when it, sua sponte, failed to provide a limiting instruction regarding the admission of K.S.A. 60-455 evidence.

Next, Myers argues that he was deprived of his right to a fair trial by the trial court’s improperly instructing the jury on reasonable doubt.

Myers did not raise this issue to the trial court. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). There are exceptions to this general rule, however, including when consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). If the reasonable doubt instruction unconstitutionally diluted the State’s burden of proof, the instruction impacted Myers’ due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and consideration of his argument is necessary to prevent a denial of those rights. See Sullivan v. Louisiana, 508 U.S. 275, 277-82, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (denial of the right to a jury trial by giving a defective reasonable doubt instruction constituted structural error requiring reversal of defendant’s conviction).

Jury instructions are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. State v. Hall, 292 Kan. 841, 857, 257 P.3d 272 (2011). Where a defendant challenges a jury instruction on appeal but did not object at trial, an appellate court reviews the issue under the clearly erroneous standard. See K.S.A. 22-3414(3); State v. Adams, 292 Kan. 60, 75, 253 P.3d 5 (2011). “‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citations omitted.]” 292 Kan. at 75.

The jury instruction to which Myers now objects, stated:

“The State has the burden to prove Mr. Myers is guilty. Mr. Myers is not required to prove he is not guilty. You must presume he is not guilty unless you’re convinced from the evidence he is guilty. The test you must use in determining whether Mr. Myers 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 Mr. Myers not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find Mr. Myers guilty.”

As recognized by Myers, we have addressed this argument before. In State v. Beck, 32 Kan. App. 2d 784, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004), where the court considered and rejected a challenge to a reasonable doubt jury instruction that similarly used “any” instead of “each.” In Beck, the final sentence in the reasonable doubt instruction stated: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” At the time of Beck’s trial, this language was recommended in PIK Crim. 3d 52.02. See 32 Kan. App. 2d at 785. Beck challenged the final sentence of the instruction arguing that “the use of the word ‘any’ in this context allows for a conviction even if there are insufficient facts to support each element of the crime.” 32 Kan. App. 2d at 787. The Beck court rejected this argument and stated:

“Again, Beck is focusing on one word of the instruction in isolation from its context. The word ‘any’ is used consistently in the instruction. The sentence immediately preceding the language Beck finds objectionable states: ‘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.’ We reject Beck’s 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. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: ‘To establish this charge, each of the following claims must be proved . . . .’ This language negates any potential confusion that may have been caused by the use of the word ‘any’ in Instruction No. 6.” 32 Kan. App. 2d at 787-88.

Myers’ argument is identical to Beck. The Beck court rejected the defendant’s argument that the use of the word “any” in the final sentence of the instruction could somehow create ambiguity or result in the defendant being convicted if only one element of the crime was proven by the State. The Beck court emphasized that the elements instruction for the crime charged in that case stated: “To establish this charge, each of the following claims must be proved . . . .” 32 Kan. App. 2d at 787-88. Here, the trial court instructed the jury in instruction nos. 3, 4, and 5 that to establish the crime of aggravated robbery, “each of the following claims must be proved.” (Emphasis added.)

Myers argues the PIK committee’s subsequent alteration of the language in the challenged jury instruction/PIK instruction demonstrates the unconstitutional nature of the instruction used in his trial and provides merit for his argument. In 2005, following this court’s decision in Beck, the PIK committee modified the reasonable doubt instruction at PIK Crim. 3d 52.02. The current approved instruction provides the following test:

“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.) PIK Crim. 3d 52.02.

The current approved version of PIK Crim. 3d 52.02 provides the most accurate test for reasonable doubt, and the current instruction is an improvement on the jury instruction given at Myers’ trial. Nonetheless, the language of the jury instruction on reasonable doubt given at Myers’ trial was identical to the instruction recommended in PIK Crim. 3d 52.02 prior to 2005. The Kansas Supreme Court had previously held that this version of PIK Crim. 3d 52.02 accurately reflected the law of this state and properly advised the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 474-75, 931 P.2d 664 (1997).

Applying the reasoning in Beck and considering the full panoply of jury instructions given at Myers’ trial, rather than isolating any one instruction, we find that the instructions were substantially correct and the jury could not reasonably have been misled by them. The reasonable doubt instruction given by the trial court at Myers’ trial was not a clear misstatement of the law. We conclude that the reasonable doubt instruction provided in Myers’ case, while not the best practice, was not clear error. Accordingly, Myers is not entitled to a new trial based on the jury instructions.

Myers also argues that we should reverse due to cumulative error. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is “‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).

Because we have found there were no errors in this case, Myers’ cumulative error argument fails.

Myers also asserts constitutional violations under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Myers concedes that he has merely raised this issue to preserve it for federal review. Moreover, we are duty bound to follow the Kansas Supreme Court’s decisions in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008), and State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). See State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court has not indicated that it is departing from its prior position. See State v. Davis, 268 P.3d 506, 2012 WL 401618, at *7 (Kan. App. 2012) (unpublished opinion). Thus, we conclude that Myers’ constitutional rights under Apprendi were not violated.

Last, Myers contends the use of his criminal history, specifically his juvenile adjudications, for sentencing purposes, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense in violation of Apprendi. This issue has already been decided adversely to Myers and is without merit. See State v. Fischer, 288 Kan. 470, Syl. ¶ 3, 203 P.3d 1269 (2009) (juvenile adjudications final on June 20, 2008, the date the court filed In re L.M., 286 Kan. 460, 186 P.3d 164 [2008], may be included in an offender’s criminal history score); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), 537 U.S. 1104, 123 S. Ct. 962, 154 L. Ed. 2d 772 (2003); Ivory, 273 Kan. at 46-47. June 22, 2012Myers’ juvenile adjudications were final prior to June 20, 2008.


Leave a Reply