text:
    Scott P. ROEDER, Appellant, v. STATE of Kansas, Appellee.
    No. 119,503
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    Kristen B. Patty, of Wichita, and Scott P. Roeder, pro se, for appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Hill, P.J., Standridge, J., and Neil B. Foth, District Judge, assigned.
    MEMORANDUM OPINION
   Per Curiam:

Scott P. Roeder appeals from the district court's decision to summarily dismiss his motion attacking sentence, which the district court construed as a request for postconviction relief under K.S.A. 2018 Supp. 60-1507. Roeder also appeals from the district court's decision to dismiss his emergency motion to protect unborn individuals. For the reasons stated below, we affirm both of the district court's decisions.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Roeder of one count of premeditated first-degree murder after Roeder fatally shot Dr. George Tiller during a church service in an effort to prevent the doctor from performing further abortions. The jury also convicted Roeder of two counts of aggravated assault based on evidence that, while he was fleeing the scene after the shooting, Roeder threatened to shoot two men who pursued him into the parking lot. Roeder's convictions were affirmed by the Kansas Supreme Court. Roeder subsequently filed a motion attacking his sentence, which the district court construed as a motion for postconviction relief under K.S.A. 2018 Supp. 60-1507. In his motion, Roeder claimed (1) he was the victim of a pattern of deliberate legal indifference, (2) he was denied the twin rights of being present at all critical stages of a criminal prosecution and being free to retain counsel of choice, (3) he was denied effective assistance of counsel during the original proceedings in the district court, and (4) he was denied effective assistance of counsel on direct appeal.

Roeder later filed under the same case number an emergency motion for a stay of execution of all unborn and partially born individuals.

The district court summarily dismissed the 1507 motion, finding Roeder's allegations either were unsupported by existing law, were merely conclusory allegations, or should have been made on direct appeal. The court dismissed the emergency motion for stay of execution, finding that Roeder lacked standing and that filing an ancillary proceeding to protect the rights of unborn or partially born individuals within a 1507 motion constituted an abuse of process.

Roeder moved to alter or amend the court's ruling. After reviewing the briefs submitted by Roeder, the court declined to alter or amend its ruling based on a finding that Roeder

"did not state any particular facts that would show that counsel's performance fell below an objective standard of [ ]reasonableness and that the performance prejudiced the petitioner. Petitioner merely advanced legal arguments or theories that he claims trial counsel or appellate counsel should have argued on appeal. Many of the legal positions or theories advocated by the Petitioner are not supported by current law or would not have been admissible at the time of the petitioner's trial."

The court also reaffirmed its dismissal of Roeder's emergency motion.

STANDARD OF PROOF

The law surrounding K.S.A. 2018 Supp. 60-1507 motions is well-established. A district court has three options when handling a 1507 motion:

" '(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014).

To avoid the summary denial of a motion brought under K.S.A. 2018 Supp. 60-1507, a movant bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record. If such a showing is made, the court must hold a hearing unless the motion is a "second" or "successive" motion seeking similar relief. Sola-Morales , 300 Kan. at 881. Here, the district court exercised the first option and summarily dismissed the motion.

STANDARD OF REVIEW

When the district court summarily denies a K.S.A. 2018 Supp. 60-1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant has no right to relief. Sola-Morales , 300 Kan. at 881.

ANALYSIS

On appeal, Roeder raises the following five issues for our review: (1) His statutory and constitutional rights were violated because he was not present in person and did not have counsel at his first appearance; (2) his trial counsel was ineffective for failing to call a coroner as a witness to prove that abortion was a legal harm or evil; (3) his appellate counsel was ineffective for failing to ask the Kansas Supreme Court to adopt the definition of "imminence" as set forth in a 2010 U.S. Justice Department memorandum; (4) his appellate counsel was ineffective for failing to effectively answer certain questions during oral argument; and (5) the district court erred by dismissing his emergency motion to protect unborn individuals as an abuse of process.

The five issues identified above are derived from the appellate brief submitted by Roeder's attorney as well as from Roeder's pro se appellate brief. The issues are not necessarily in the same order presented in those briefs. Although Roeder raised more than five issues in the K.S.A. 2018 Supp. 60-1507 motion he originally filed with the district court, he failed to brief some of those issues on appeal; thus, we deem them abandoned. See State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018) (holding issues not adequately briefed are waived or abandoned). Roeder also raises a new issue for the first time on appeal. As a general rule, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). Roeder does not argue any of the recognized exceptions to this rule. Therefore, we will not address the new issue.

1. First appearance

In the motion for relief he filed with the district court, Roeder claimed his convictions must be vacated because, at his first court appearance after arrest, he was deprived of the right to be personally present and the freedom to retain counsel of choice:

"At my so called first appearance before a magistrate, while being bound over for a felony, I was made to appear by way of two-way electronic audio-video communication without the assistance of counsel and without being informed of my right to be personally present in the courtroom, and at which time my substantial constitutional right to bail was denied, all of which was broadcast on television while I was in jail clothes. Though counsel was later appointed and moved the court to set bail, counsel was ineffective who addressed neither the deliberate indifference which was shown to me in denying my twin rights before a televised audience nor its fatal effect upon the state's case which is the logical effect of deliberate indifference to the twin rights at first appearance."

We begin by noting that, contrary to his assertion, Roeder was not bound over on felony charges at his first court appearance on June 2, 2009. The proceeding in which Roeder was bound over on the felony charges lodged against him was the preliminary hearing, which was held on July 28, 2009. The journal entry and transcript from the preliminary hearing reflect Roeder was present in person and through counsel, Charles Osburn. The journal entry and transcript also reflect that, after hearing evidence at the hearing, the district court found probable cause to believe (1) that the offenses of first-degree murder and aggravated assault had been committed and (2) that Roeder was the individual who committed those offenses. See In re D.E.R. , 290 Kan. 306, 312-14, 225 P.3d 1187 (2010) (purpose of statutory preliminary hearing is to determine whether crime has been committed and whether there is probable cause to believe that defendant committed it). Based on the court's finding of probable cause, Roeder was bound over for trial. See K.S.A. 2018 Supp. 22-2902(3) ("If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant.").

Unlike a preliminary hearing, the Kansas statute governing first court appearances provides, in relevant part:

"(1) Except as provided in subsection (7), when an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he [or she] shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith." K.S.A. 2018 Supp. 22-2901(1).

The purpose of the rule requiring a person to be taken before a magistrate without unnecessary delay after an arrest is to safeguard individual rights. State v. Wakefield , 267 Kan. 116, 124, 977 P.2d 941 (1999). Although law enforcement, as part of the executive branch of government, is charged with the duty to advise arrestees of their statutory and constitutional rights, K.S.A. 2018 Supp. 22-2901(1) comports with fundamental principles of due process by requiring that the arrestee be taken without unnecessary delay to an impartial tribunal so a neutral judge can provide the arrestee with notice of the charges filed and the constitutional rights to which the arrestee is entitled. See State v. Crouch & Reeder , 230 Kan. 783, 785-86, 641 P.2d 394 (1982).

Given the record reflects both he and his attorney were present at his preliminary hearing, we now address the merits of Roeder's claims alleging that he was deprived of the right to be personally present and the freedom to retain counsel of choice at his first court appearance. We address each of these claims in turn.

a. Right to be present

Whether a trial court violated a defendant's constitutional or statutory right to be present at every critical stage of his or her criminal trial is an issue of law over which an appellate court exercises unlimited review. State v. Verser , 299 Kan. 776, 787, 326 P.3d 1046 (2014).

A defendant has both a constitutional and a statutory right to be present at all critical stages of prosecution. The constitutional right " 'emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments.' " State v. Lowery , 308 Kan. 1183, 1213, 427 P.3d 865 (2018). The statutory right is set forth in K.S.A. 2018 Supp. 22-3405, a section of the criminal code of procedure in Kansas governing the presence of the defendant at trials and proceedings incident to trials. The statute states, in relevant part, that "[t]he defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law." K.S.A. 2018 Supp. 22-3405(a). The effect of this statute has been held by our Supreme Court to be " 'analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings.' " Lowery , 308 Kan. at 1213.

Relevant to the issue presented by Roeder here, the section of the criminal code of procedure in Kansas governing pretrial proceedings provides the manner in which the court can satisfy its duty to ensure a defendant is not deprived of the right to be present when pretrial pleadings and motions come before the court. Specifically, K.S.A. 2018 Supp. 22-3208(7) deems the defendant's participation via audio-video connection to satisfy the right to be present at hearings when pretrial pleadings and motions come before the court so long as the defendant is informed of the defendant's right to be personally present in the courtroom during those proceedings upon request of the defendant.

Roeder made his first court appearance on June 2, 2009. He readily concedes that he was present at the hearing. He takes issue, however, with the fact that the district court failed to inform him during the video hearing of his right to be personally present in the courtroom upon request, as set forth by K.S.A. 2018 Supp. 22-3208(7). Claiming he would have requested a personal appearance in the courtroom had he been told of his right to make such a request, Roeder argues he was prejudiced by the court's failure to advise him of his right. We are not persuaded by Roeder's argument. Significantly, Roeder does not argue, nor are there facts in the record to establish, that Roeder's appearance at the first court hearing by video, as opposed to an in-person appearance, deprived him of any constitutional right, including the right to confront witnesses or his due process right to a fair and just hearing. For this reason, Roeder's constitutional challenge fails.

With regard to his claim that the district court erred by failing to comply with the statute requiring a defendant be advised during a video hearing of the right to be personally present in the courtroom upon request, Roeder has failed to provide any evidence to establish that he was not so informed. The written journal entry documenting Roeder's first appearance on June 2, 2009, does not indicate how Roeder appeared, whether Roeder was informed of this right to appear in person upon request, and, if he was, whether he affirmatively made such a request. Although Roeder attached an uncertified transcript to his appellate brief that purports to document the proceedings at the initial appearance, an official certified transcript of the first appearance is not part of the record on appeal. And even if we could consider the uncertified transcript attached to his brief, that transcript affirmatively indicates that Roeder appeared at the hearing "in person."

In sum, we find the motion, files, and records of the case conclusively establish that Roeder is not entitled to relief on his claim that he was deprived of his constitutional or statutory right to be present at his initial appearance.

b. Right to counsel

Roeder complains the district court violated his Sixth Amendment right to counsel by failing to provide him an attorney at his first appearance, a hearing at which the court determined Roeder should be held without bond. But the Sixth Amendment right to counsel applies only at "critical stages" of the criminal proceeding, and Roeder's first appearance and initial bail hearing was not a critical stage of his criminal proceeding. See Craig v. State , 198 Kan. 39, 41, 422 P.2d 955 (1967) (noting that counsel need not be appointed for initial appearance before judge at which bail is determined); see 3 LaFave, Israel, King, & Kerr, Criminal Procedure § 11.2(b), p. 702 (4th ed. 2015) (noting that while United States Supreme Court left open question of whether first appearance in criminal case is critical stage requiring counsel in Rothgery v. Gillespie County , 554 U.S. 191, 128 S. Ct. 2578, 171 L.Ed. 2d 366 [2008], statements in Court's opinion and concurring opinion suggested that the standard first appearance ordinarily would not be a critical stage).

Even if we construed his first court appearance to be a critical stage of the criminal proceedings against him, Roeder does not allege, nor is there record evidence to establish, that Roeder was prejudiced in any way. The record on appeal establishes that Roeder made his initial court appearance on June 2, 2009, the same day he was charged. The judge read the charges, denied Roeder the right to be released upon payment of an appearance bond, and appointed the public defender's office to defend him. On June 3, 2009-one day after his first court appearance-Roeder's court-appointed counsel filed a motion for an appearance bond. On June 4, 2009, the court set bond at $5 million.

The motion, files, and records of the case conclusively establish that Roeder is not entitled to relief on his claim that he was deprived of his constitutional right to counsel at his initial appearance.

2. Ineffective assistance of counsel

To prevail on a claim of ineffective assistance of counsel, a movant must establish (1) that the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability of a different result absent the deficient performance. Sola-Morales , 300 Kan. at 882 (relying on Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed. 2d 674 [1984] ). Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. State v. Butler , 307 Kan. 831, 853, 416 P.3d 116 (2018). The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly , 298 Kan. 965, 970, 318 P.3d 987 (2014).

a. Trial counsel

Roeder contends that his trial counsel was ineffective for failing to call the coroner as a witness to make a factual determination "whether babies killed by performing an abortion are in fact victims of the legal harm or evil of homicide." Roeder argues this testimony was critical to his necessity and imperfect defense-of-others defenses. He argues that if he showed that abortion was a legal harm or evil, he would have been allowed to assert those defenses and it would have been more likely than not that no reasonable juror would have convicted him of first-degree murder.

Notably, Roeder challenged on direct appeal the district court's decision to deny his request to put on a necessity defense and the court's decision to deny his request to give an instruction on the lesser included offense of voluntary manslaughter based on imperfect defense-of-others. Although now framed in the context of ineffective assistance of counsel, he now raises these same issues.

(i) Necessity defense

Before trial, the trial court ruled that Roeder could not present a necessity defense. As we noted, Roeder challenged that ruling in his direct appeal. In its decision, our Supreme Court declined to state whether a necessity defense could ever be presented in Kansas. Rather, the court held the facts presented in this particular case "unequivocally preclude" applying the necessity defense. State v. Roeder , 300 Kan. 901, 919, 336 P.3d 831 (2014). The court held:

"Regardless of whether Kansas courts can recognize a necessity defense as a matter of common law and regardless of the formulation of the defense that might be adopted, the necessity defense would never be available to a defendant who commits premeditated first-degree murder of a doctor in order to prevent that doctor from performing an abortion sometime in the future, even if the defendant is convinced that the doctor will fail to comply with all the administrative rules and regulations applicable to abortion providers." 300 Kan. 901, Syl. ¶ 3.

Given the manner in which Roeder wanted to avail himself of the necessity defense, the Supreme Court held the defense would be available only if Roeder could establish the following elements: (1) He faced a choice of evils and chose the lesser evil, (2) he acted to prevent imminent harm, (3) he reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and (4) he had no legal alternatives to violating the law. 300 Kan. at 917.

In holding that the facts presented in this case precluded application of the necessity defense, the Supreme Court characterized the evil Roeder sought to prevent as:

"Dr. Tiller's failure to comply with all of the rules and regulations applicable to abortion providers, i.e. , administrative or procedural irregularities. Roeder wants to argue that the doctor was murdering babies, but that is his religious and moral view, rather than the legal view in this state. As noted above, [ City of Wichita v. ] Tilson [, 253 Kan. 285, 855 P.2d 911 (1993) ] declared that '[t]he harm or evil which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.' 253 Kan. at 289-90. Indeed, one need look no further than Dr. Tiller's criminal trial upon which Roeder relies to establish his belief that illegal abortions were occurring at the clinic. The doctor was not charged with murder, but rather that trial was about misdemeanor violations for failing to follow the proper procedure." 300 Kan. at 917-18.

The court ultimately concluded that Roeder did not choose the lesser evil when he killed Dr. Tiller. The court also concluded that Roeder did not act to prevent imminent harm because Dr. Tiller was not going to be performing any abortions at the church. The court found Roeder killed Dr. Tiller at the church because it made the assassination easier to accomplish. The court did not find persuasive Roeder's argument that the possibility of Dr. Tiller performing an abortion 22 hours after the shooting qualified as imminent harm. Finally, the court found Roeder did not sincerely believe the harm was imminent because he waited over a decade to prevent it. 300 Kan. at 918.

Given the Supreme Court's decision affirming the district court's decision to preclude Roeder from asserting a necessity defense, we find his trial counsel was not deficient for failing to call the coroner as a witness to make a factual determination "whether babies killed by performing an abortion are in fact victims of the legal harm or evil of homicide."

(ii) Imperfect defense-of-others

On direct appeal, Roeder also argued the district court erred in denying his request to give an instruction on the lesser included offense of voluntary manslaughter based on imperfect defense-of-others. Relevant here, K.S.A. 21-3403(b) defined voluntary manslaughter based on an imperfect defense-of-others as "the intentional killing of a human being committed ... (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211." The statute referenced in the definition, K.S.A. 21-3211, sets forth the elements necessary to support a perfect defense of third persons.

Roeder argued in his direct appeal that he met the criteria necessary to justify giving a voluntary manslaughter instruction based on imperfect defense-of-others by testifying that he honestly believed killing Dr. Tiller was necessary in order to defend the lives of others. Implicit within Roeder's argument is the notion that an imperfect defense-of-others instruction is proper based solely on a showing of a defendant's subjective and honest belief that deadly force was necessary to protect third persons. Our Supreme Court disagreed, holding that the voluntary manslaughter analysis requires both (1) a finding that the defendant subjectively and honestly believed that circumstances existed to justify deadly force as well as (2) a finding that the circumstances which the defendant honestly believed to exist must have been circumstances that would have supported a perfect defense of third persons under K.S.A. 21-3211. See Roeder , 300 Kan. at 923. The court held that "even if the circumstances that Roeder believed existed had been true-that Dr. Tiller would be performing abortions the following day-those circumstances would not have supported a claim of perfect defense-of-others." 300 Kan. at 926. The court further held that in order for the defense "to apply under K.S.A. 21-3211(a), Roeder had to be defending against Dr. Tiller's 'imminent use of unlawful force' against a third person." 300 Kan. at 926. The court explained:

"As the trial court aptly noted, no use of force was imminent in the church foyer that Sunday morning. Moreover, the facts belie the notion that Roeder committed the crime when and where he did because of an honest belief in the imminence of harm. To the contrary, he coldly calculated the time and place that gave him the best odds of successfully completing his planned murder. Additionally, given that abortions are lawful, Roeder could not have been defending against unlawful force , as required for perfect defense-of-others. Even if the doctor had failed to comply with all of the rules and regulations governing abortions, the use of the force required to accomplish the abortion would not have been unlawful.
"Finally, we would note that Roeder's argument that he honestly believed that Dr. Tiller was performing unlawful abortions based upon the attorney general investigations and allegations that the doctor was violating administrative protocol is simply disingenuous. Roeder testified that he formed the belief that he needed to kill Dr. Tiller over a decade prior to any attorney general investigation. Further, he clearly testified that he sought to stop all abortions, including those that were legal under the law." 300 Kan. at 926.

Again, given the Supreme Court's decision that the district court did not err in denying Roeder's request to give an instruction on the lesser included offense of voluntary manslaughter based on imperfect defense-of-others, we necessarily find his trial counsel was not deficient for failing to call the coroner as a witness to support such an instruction.

b. Appellate counsel

(i) Imminence

Roeder contends that a threat on U.S. persons is "imminent" when an individual " 'is engaged in continual planning and direction of attacks upon U.S. persons' even when one 'does not know precisely when such attacks will occur.' " He purportedly derives this definition from a U.S. Department of Justice memorandum entitled " 'Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi' " dated July 16, 2010. Roeder contends under this definition of imminence, as long as Dr. Tiller had abortions on his schedule they were imminent, no matter how far out. He contends that no reasonable juror would have found his belief that harm was imminent unreasonable in view of this definition of imminence. He contends that his appellate counsel was ineffective for conceding that six months out was not imminent.

But there was no support in the law upon which appellate counsel could rely to support Roeder's broad definition of imminence. To make a claim of imperfect defense of another, the defendant must have actually believed that an imminently dangerous situation existed at the time of the killing. State v. White , 284 Kan. 333, Syl. ¶ 10, 161 P.3d 208 (2007).

In White , the court held that, although " 'imminent' describes a broader time frame than immediate, the term 'imminent' is not without limit. The danger must be near at hand." 284 Kan. 333, Syl. ¶ 9. White believed that his grandson had been sexually abused and would be abused in the future. White drove to the Wal-Mart store where the purported abuser worked, and White shot and killed him. The court found no evidence that White actually believed that the grandson was in imminent danger at the time of the shooting because the grandson was not present at the store. Thus a voluntary manslaughter instruction based on imperfect defense of others would have been inappropriate. 284 Kan. at 353. Similarly here, Dr. Tiller's alleged victims were not present at the church where Roeder shot him.

In State v. Hernandez , 253 Kan. 705, 861 P.2d 814 (1993), Hernandez confronted Randy Meis after 9:05 a.m. at their mutual place of employment and asked him outside. Hernandez believed that Randy, who was married to Hernandez' sister Myra Meis, intended to kill Myra at 11 a.m. that day (less than two hours away). Randy had a history of violence toward Myra. But Myra was not present during the confrontation; though Myra worked at the same location and was in the building. During the confrontation, Hernandez shot and killed Randy. The court ruled the danger to Myra was not imminent, and Hernandez had no right to a defense-of-another instruction. 253 Kan. at 712-13.

This underlying issue of imminence was decided aversely to Roeder in his direct appeal. His appellate counsel argued that Roeder believed the danger was imminent because, at the time of the shooting, Dr. Tiller had an abortion scheduled 22 hours later. See Roeder , 300 Kan. at 918. But the Kansas Supreme Court found 22 hours was not imminent. The court thus refused to adopt even his counsel's more narrow definition of imminence. The court considered the danger posed by Dr. Tiller "remote" compared to Hernandez . Roeder , 300 Kan. at 939. And the court found that the facts showed Roeder did not have an honest belief in the imminence of the harm; rather, he waited over a decade and "coldly calculated the time and place that gave him the best odds of successfully completing his planned murder." 300 Kan. at 918, 926.

We find no deficiency in appellate counsel's representation related to the issue of imminence.

(ii) Oral argument

Roeder argues his appellate counsel was ineffective by stating that Roeder believed that only late-term abortions were illegal. Rather, he believed "that any abortion performed by Tiller, being the lethal execution of a baby, was unlawful and that its prevention justified the use of deadly force." But Roeder's position only makes it clear why he was not entitled to an imperfect self-defense instruction as a matter of law. In its opinion, our Supreme Court held that it is a "fundamental notion that everyone is presumed to know the law and one cannot use as a defense his or her subjective belief that the law is or should be something different." (Emphasis added.) Roeder , 300 Kan. at 922. The court held that "given that abortions are lawful, Roeder could not have been defending against unlawful force " as required to claim imperfect self-defense. 300 Kan. at 926.

Roeder also argues that appellate counsel was ineffective for being stumped by certain hypotheticals posed by the justices. But the fact that Roeder may have answered these hypotheticals differently than his appellate counsel does not establish that counsel's representation fell below the broad range of reasonable professional assistance. We find no deficiency in appellate counsel's statements at oral argument.

3. Emergency motion

Roeder contends that he established in his emergency motion the right of unborn and partially born individuals to a stay of execution of sentence of death under Kansas law. The district court ruled that Roeder could not use a K.S.A. 60-1507 proceeding as a vehicle to file ancillary proceedings for unborn or partially born individuals. Roeder responds that the emergency motion was properly within the scope of his K.S.A. 60-1507 proceeding because (1) the legal proof of personhood fell within the scope of what was germane to establishing his own right to an evidentiary hearing on his K.S.A. 60-1507 motion and (2) lives urgently need to be saved from lethal execution under Kansas law.

To decide this issue, it is helpful to understand precisely what K.S.A. 2018 Supp. 60-1507(a) says:

"A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of 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, may , pursuant to the time limitations imposed by subsection (f), move the court which imposed the sentence to vacate, set aside or correct the sentence ." (Emphases added.)

The statute permits a prisoner to challenge his or her sentence in the court which imposed the sentence, not to challenge anyone else's sentence. It does not matter if the issues involved are similar. As the district court aptly explained,

"The statutory procedure under K.S.A. 60-1507 is an individual remedy for a person allegedly unlawfully held in detention. The request is unique to that individual and any requested relief afforded by the circumstances of that individual's detention. To allow the Petitioner to advocate on behalf of the unborn or partially born individuals, (assuming for the moment that is even a viable legal position) would be tantamount to allowing any prisoner in the State of Kansas to file their individual petition under K.S.A. 60-1507, and then advocate on behalf [of] all prisoners 'similarly situated' for their alleged unlawful detention. Petitioner is not entitled in this instant action to amend and add separate claims on behalf of other individuals, even as 'next friend'. The petitioner's attempt to seek additional relief on behalf of others, beyond his individual claims under K.S.A. 60-1507, is an abuse of process, and would not be recognized as a legal theory under the present case. If Petitioner seeks to advocate on behalf of the partially born or unborn individuals within this Court's venue and jurisdiction, Petitioner should pursue that remedy in a separate action."

Roeder filed a similar petition as an original habeas action under K.S.A. 2018 Supp. 60-1501 in November 2017 under case number 118,601. The Supreme Court dismissed that petition. The district court did not err in dismissing Roeder's emergency motion.

Affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Leonard D. CHARLES Sr., Appellant.
    No. 119,346
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    Peter Maharry, of Kansas Appellate Defender Office, for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Leonard D. Charles appeals his convictions of one count of aggravated kidnapping, one count of aggravated domestic battery, one count of criminal threat, and two counts of domestic battery. Charles claims: (1) the State committed reversible prosecutorial error in closing argument; (2) there was insufficient evidence to support his aggravated kidnapping conviction; (3) the district court erred on the verdict form by placing "guilty" before "not guilty," violating the presumption of innocence; (4) the jury instructions infringed on the jury's power of nullification; and (5) cumulative error requires reversal of his convictions. The State challenges our jurisdiction over this appeal based on an insufficient notice of appeal. We find that the State has failed to show any prejudice based on Charles' deficient notice of appeal. But we find against Charles on each of his claims of error, so we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Charles and R.C. had been involved in a romantic relationship for five years and planned to get married in the future. In August and September 2017, R.C. noticed a change in Charles' behavior. Charles became aggressive and egotistical. He began staying up for days at a time and neglecting his hygiene. During this time, Charles began several projects around the house, tearing things up and leaving projects unfinished. R.C. tried to talk to Charles about his behavior many times, but he denied having a problem and told her that "he needed to show the world that he wasn't going to take its crap anymore." In early September 2017, R.C. sent her 14-year-old son to live with his adult sister because R.C. feared for his safety because of Charles' aggressive behavior.

On September 17, 2017, R.C. had been away from the house running errands. When she returned home in the afternoon, she found the house in disarray. Charles was hanging up flags in a window. R.C. complained to Charles about the mess. In response, Charles got in R.C.'s face, "kind of headbutted [R.C.]," pointed his finger at her, and called her "a stupid bitch." This was the first time that Charles had ever physically attacked her. Charles followed R.C. to the bathroom and kept yelling and screaming at her. R.C. told Charles that he should just leave and she went outside to smoke.

Charles followed R.C. outside, and he swung the screen door open with enough force that the door hit R.C. Charles got in R.C.'s face and kept yelling and screaming at her to the point that he was "kind of spitting on [her]." Charles told R.C. that he was tired of her complaints and he could do what he wanted to do. Charles then grabbed R.C. by the hair and slammed her to the ground. Charles began to kick and hit R.C. while she was on the ground. R.C. said she was in shock and did not understand why this was happening. As R.C. tried to get up off the ground, Charles grabbed her hair and drug her back into the house as she screamed.

Back in the house, Charles slammed R.C. to the floor and locked both locks on the door. As Charles began to shut the windows, R.C. went to the door and tried to unlock the locks. Charles pulled R.C. away from the door and slammed her down again. R.C. then tried to escape through the bedroom, which had a back door. Charles again caught up with her, grabbed her, and slammed her against a mattress that was leaning up against the wall, causing the mattress to fall on her. Charles lifted the mattress off R.C., grabbed R.C. by her hair, pulled her head back, and started to choke her. As he was choking her, Charles told R.C. that he could kill her with his hands.

Charles left R.C. in the bedroom. R.C. could hear Charles in the living room shutting windows, so she got up and ran for the back door in the bedroom. Before R.C. could get the slide lock open, Charles returned to the bedroom. He grabbed R.C. with both hands and squeezed her neck. R.C. tried to pull Charles' hands off her neck, but she passed out. As R.C. regained consciousness, Charles told her: "[Y]ou can die. If I'm jumping off a cliff, you can go with me." This pattern of choking R.C. until she passed out, waiting for her to wake up, and then choking her again happened five or six times.

When Charles left the room, R.C. went down the hallway to try to get to the front door. As soon as she made it into the living room, Charles came running up behind her with a golf club. Charles told R.C. to take the golf club and "beat my ass" and "[s]how me how bad you are." R.C. did not take the golf club but again began to run away. Charles hit her in the upper right side of her back with the golf club, knocking her to the floor. Charles grabbed R.C. by the hair and pulled her neck so far back that it "literally felt like it was going to snap at any time."

R.C. begged Charles to allow her to leave, but Charles said: "[Y]ou can't go anywhere now, not go looking like that. You look like the elephant man." Charles made R.C. take off her shirt because it was torn and had blood on it. Charles then poured a bottle of alcohol and a bottle of peroxide on her face before rubbing antibacterial cream on her. R.C. could taste the alcohol and her face burned as Charles poured the liquids on her. Charles also placed a towel with ice on her face. R.C. estimated that he held her in the house for a couple of hours before she finally talked him into letting her go across the street to get a Pepsi. Charles warned R.C. not to call the police.

Once outside, R.C. walked to a nearby Dollar General and called 911. R.C. also called a friend, Anette Hunt, who arrived at the Dollar General before the police. R.C.'s daughter and her daughter's boyfriend came and parked their car in front of R.C.'s house and waited for the police to arrive. About an hour later, after two additional calls to 911, the police arrived at the Dollar General.

Officer Juan Atondo responded to the Dollar General. Atondo took a statement from R.C. and took photographs of her injuries. He testified that R.C. had several scratches on her face and a "huge goose egg" on her forehead. R.C. also had red marks along her neck and cheek. Atondo believed he could see petechial hemorrhages in R.C.'s eyes consistent with being choked. Atondo said that R.C. looked like she had been in a car accident. EMS attended to R.C., but she declined to go to the hospital. Instead, she walked back to her house with the police.

By that time, Charles had left and other police officers had cleared the house. R.C. took Hannah Holley, a crime scene investigator, through the house and pointed out things that had changed since she was able to leave. Holley noted that the entire house smelled like cleaning solution. Holley located a single golf club in the bedroom. Holley collected various items from the house as evidence. In Holley's presence, R.C. undressed so that Holley could document her injuries. R.C. sustained large bruises and scrapes all over her body, a contusion on her head, bruising and scratching to her neck, bruising to her arms, bruising up and down her back, a blood clot under her chin, a concussion, and whiplash.

On September 20, 2017, the State charged Charles with aggravated battery, aggravated domestic battery, and criminal threat. The State later filed an amended information to include a charge of aggravated kidnapping and another charge of aggravated battery.

At trial, R.C., Hunt, Holley, Atondo, and other law enforcement officers testified for the State. The State introduced over 100 photographs showing R.C.'s injuries and the condition of her residence on September 17, 2017. Charles testified in his defense. He denied having an argument with R.C. and denied hitting or kicking her. He claimed that R.C. fell off the porch and when he went to help her, R.C. told him to get off of her. Charles testified that R.C. was taking medications that made her tend to exaggerate.

The district court instructed the jury on all five charges as well as the lesser included offenses. The jury found Charles guilty of one count of aggravated kidnapping, one count of aggravated domestic battery, one count of criminal threat, and two counts of domestic battery.

Before sentencing, Charles filed a motion for appointment of new counsel, which the district court denied. Charles then chose to represent himself at the sentencing hearing. The district court sentenced him to a controlling term of 638 months in prison.

Charles filed a timely pro se notice of appeal.

JURISDICTION

The State claims that this court lacks jurisdiction over the appeal because Charles' notice of appeal is insufficient to confer appellate jurisdiction. Whether jurisdiction exists is a question of law over which an appellate court has unlimited review. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016).

K.S.A. 2018 Supp. 60-2103(b) provides: "The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken." In addition, Supreme Court Rule 2.02 (2019 Kan. S. Ct. R. 14) states that the "notice of appeal must be filed in the district court, be under the caption of the district court case, and be in substantial compliance with the judicial council form."

After sentencing, and within the 14 days required to file a notice of appeal, Charles filed a pro se document entitled "Pro se Motion for 'NOTICE OF APPEAL.' " The notice of appeal identifies the correct criminal case as 2017 CR 2787. But instead of identifying the order from which the appeal is taken, the remainder of the notice of appeal identifies trial errors below and reads much like a K.S.A. 60-1507 motion. Nowhere in the notice of appeal does Charles state that he is appealing from his convictions nor does he identify a date of conviction or sentencing. The notice of appeal also fails to identify the Court of Appeals as the appellate court to which the appeal is taken.

Generally, the appellate courts construe notices of appeal broadly to confer jurisdiction. In State v. Laurel , 299 Kan. 668, 673, 325 P.3d 1154 (2014), our Supreme Court noted that K.S.A. 2011 Supp. 60-2103(b) should be liberally construed to " 'to assure justice in every proceeding.' " But the court also indicated there was a substantive minimum notice required by the statute to support jurisdiction. 299 Kan. at 673.

As noted by the State, Charles' notice of appeal violates K.S.A. 2018 Supp.60-2103(b), as it fails to designate the judgment appealed from or the appellate court to which the appeal is taken. But the notice of appeal is identified as a notice of appeal, it properly contains the caption of the district court case, and it is apparent from the substance of the document that he is challenging the circumstances that led to his convictions. Charles filed the notice of appeal within 14 days of his sentence.

In Laurel , our Supreme Court found that "a notice of appeal need not be overly technical or detailed," and the court focused on whether the State could show prejudice from the shortcomings in the notice of appeal. 299 Kan. at 674. Here, the State claims prejudice, but it fails to explain how it suffered prejudice. Instead, the State argues it "should not be required to demonstrate prejudice or surprise under circumstances showing no notice of appeal being filed."

There is no indication that the State has suffered any surprise or prejudice as a result of Charles' notice of appeal. Based on Laurel , we find that the notice of appeal was sufficient to convey notice that Charles was appealing his convictions. Thus, we conclude that this court has jurisdiction over Charles' appeal.

PROSECUTORIAL ERROR

Charles argues that the prosecutor committed reversible error in closing argument by appealing to the jury's sympathy for the victim, R.C. The State responds that the prosecutor was merely making fair comment on the evidence. The State also asserts that Charles cannot show prejudice resulting from any error in the closing argument.

In State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), the Kansas Supreme Court clarified that the appellate court uses 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.

Charles claims the State committed prosecutorial error in the closing argument by referring to the R.C.'s strength and to what she endured at the hands of Charles. The relevant part of the State's closing argument is as follows:

"I'm strong. Those were the words of the defendant yesterday to you. He was strong. So much so that he made his wife look like she had just been in a car accident, according to Officer Atondo. That's what he thought the first thing he saw her. But I would suggest to you that the evidence that you heard over the last couple of days was that the strong person was [R.C]. She was strong enough to be violently confined, threatened, beat for hours in her own home and not fight back. She had the strength to not do that. She had the strength to get away and the brain power to convince him to let her go get that Pepsi. She had the strength to call 911 on someone she loved and had known for a long time. She had the strength to tell that 911 operator what happened to her. She had the strength to tell Officer Atondo what happened to her. She had the strength to disrobe in front of a stranger and let her photograph her, while she pealed [sic ] away her clothing to show the injuries her husband had just put on her. And she had the strength to come in here and answer questions about what happened to her."
"So this is the time where you put the evidence that you hear, the words, the physical evidence to the law that the Judge gave to you. And the instructions tell you you're to use your common knowledge and experience. You get to use your common sense. And I ask you to do that."

Prosecutors are allowed wide latitude when delivering closing arguments. State v. Pribble , 304 Kan. 824, 832, 375 P.3d 966 (2016). Even so, a prosecutor's statements must be based on the evidence. State v. Stimec , 297 Kan. 126, 128, 298 P.3d 354 (2013). A prosecutor should refrain from making statements that "inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law." State v. Baker , 281 Kan. 997, 1016, 135 P.3d 1098 (2006). A prosecutor should not seek to draw the jurors' attention away from the task of weighing the evidence and instead invite them to rely on underlying emotions. See State v. Schumacher , 298 Kan. 1059, 1073, 322 P.3d 1016 (2014).

Here, the prosecutor referred to R.C.'s strength and to what she had to endure during and after the physical altercation with Charles. Arguably the prosecutor's statements invoked sympathy for R.C. But on the other hand, the statements were based on evidence presented at the trial. Without deciding whether the statements amounted to prosecutorial error, we will proceed directly to the prejudice prong of the two-step process to evaluate the claim of prosecutorial error.

Prosecutorial error is harmless if the State can show "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." Sherman , 305 Kan. at 109. Here, even if the prosecutor's statements amounted to error, the State presented overwhelming evidence to the jury corroborating R.C.'s version of a prolonged attack leading to injuries to various parts of her body. This evidence included the corroborating testimony from several witnesses, dozens of photographs, and video evidence. The evidence was inconsistent with Charles' account of a single fall from a shallow porch.

Moreover, the district court instructed the jury that "[s]tatements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded." Jurors are presumed to follow the district court's instructions. State v. Peppers , 294 Kan. 377, 392, 276 P.3d 148 (2012). Finally, the fact that the jury found Charles guilty of two lesser included offenses shows that the jury was not influenced by emotions and sympathy but focused on the evidence.

In light of the entire record, we conclude there is no reasonable possibility that any prosecutorial error in closing argument contributed to the jury's verdict here. Charles fails to show any prejudice. As a result, the challenged comments were harmless beyond a reasonable doubt and do not require reversal.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT AGGRAVATED KIDNAPPING

Next, Charles challenges the sufficiency of the evidence supporting his aggravated kidnapping conviction. The State charged Charles with aggravated kidnapping with the intent to hold R.C. to inflict bodily harm or to terrorize her. The State also charged Charles with criminal threat and three aggravated battery offenses. Relying on our Supreme Court's holding in State v. Buggs , 219 Kan. 203, 216, 547 P.2d 720 (1976), Charles contends the confinement was incidental to these offenses, and there was not a separate and distinct act supporting the aggravated kidnapping charge.

When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court reviews the evidence in a 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. Rosa , 304 Kan. 429, 432-33, 371 P.3d 915 (2016). This court does not reweigh the evidence or assess the credibility of witnesses. State v. Dunn , 304 Kan. 773, 822, 375 P.3d 332 (2016).

The State charged Charles with aggravated kidnapping under K.S.A. 2017 Supp. 21-5408(a)(3), which requires confinement with the intent "to inflict bodily injury or to terrorize the victim or another." The district court instructed the jury consistent with the elements of the charged crime. See K.S.A. 2017 Supp. 21-5408(a)(3).

Charles argues that for an aggravated kidnapping conviction to stand, the kidnapping must be separate and distinct from the underlying crimes. "[A] kidnapping statute is not reasonably intended to cover movements and confinements which are slight and 'merely incidental' to the commission of an underlying lesser crime." Buggs , 219 Kan. at 215. In Buggs , the Kansas Supreme Court laid out a framework for determining whether the confinement was distinct enough from the other crimes to allow a separate charge of kidnapping. The movement or confinement:

"(a) Must not be slight, inconsequential, and merely incidental to the other crime;"
"(b) Must not be of the kind inherent in the nature of the other crime; and"
"(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection." 219 Kan. at 216.

But Charles' argument fails because the three-part Buggs test only applies to kidnapping with the intent to facilitate flight or commission of any crime in violation of K.S.A. 2017 Supp. 21-5408(a)(2). In State v. Burden , 275 Kan. 934, 943-44, 69 P.3d 1120 (2003), the Kansas Supreme Court held that the three-part Buggs test does not apply to kidnapping with the intent to inflict bodily injury or to terrorize the victim or another in violation of K.S.A. 2017 Supp. 21-5408(a)(3). Charles' argument based on Buggs fails because the State charged him with aggravated kidnapping in violation of K.S.A. 2017 Supp. 21-5408(a)(3) and not K.S.A. 2017 Supp. 21-5408(a)(2).

Charles argues that Burden was wrongly decided because the Supreme Court failed to consider that charging aggravated kidnapping under K.S.A. 2017 Supp. 21-5408(a)(3) is similar in effect as charging a defendant under K.S.A. 2017 Supp. 21-5408(a)(2). But the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no indication that the Supreme Court is departing from its precedent in Burden .

Removing the Buggs argument from consideration, we are left to decide whether the evidence presented at trial, viewed in a light most favorable to the State, supports Charles' conviction of aggravated kidnapping. Here, there is evidence of confinement. R.C. had removed herself from the verbal altercation with Charles and was sitting on the front porch smoking a cigarette. Charles sought R.C. out on the front porch, began a physical altercation, dragged her inside the house, and locked both of the locks to prevent her release. He also shut the windows of the house to prevent anyone from hearing her calls for help, and he prevented her from escaping out the back door. Every time R.C. tried to leave the house, Charles prevented her from doing so. The evidence is overwhelming that Charles committed these acts with the intent to inflict bodily injury on R.C. or to terrorize her. Finally, the evidence was overwhelming that Charles inflicted bodily harm upon R.C. Thus, the State presented sufficient evidence to support the jury's verdict that Charles was guilty beyond a reasonable doubt of aggravated kidnapping.

VERDICT FORM

Next, Charles argues that the district court violated his constitutional right to the presumption of innocence by placing the "guilty" option before the "not guilty" option on the verdict form. During the jury instruction conference, Charles requested that the "not guilty" line on the verdict form be placed first, followed by the "guilty" line. The district court denied the request and provided a verdict form that listed the "guilty" line as the first option as provided in the Pattern Instructions of Kansas (PIK). The district court also provided a presumption of innocence instruction.

"While a verdict form is not technically a jury instruction, it is part of the packet sent with the jury which includes the instructions and assists the jury in reaching its verdict. It is appropriate to apply the same standard of review applicable to the review of instructions." Unruh v. Purina Mills , 289 Kan. 1185, 1197-98, 221 P.3d 1130 (2009).

"When analyzing jury instruction issues, we follow a three-step process:
'(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 of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e. , whether the error can be deemed harmless.' [Citation omitted.]" State v. McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018).

Here, Charles objected to the verdict form in district court, so we can review his claim on appeal. But the district court did not err in using a verdict form with the "guilty" opinion before the "not guilty" option. In State v. Wesson , 247 Kan. 639, 652, 802 P.3d 574 (1990), cert. denied 501 U.S. 1236 (1991), disapproved of on other grounds by State v. Rogers , 282 Kan. 218, 144 P.3d 625 (2006), our Supreme Court held that the district court did not err by using a verdict form placing the "guilty" option before the "not guilty" option as long as the district court properly instructed the jury on the defendant's presumption of innocence. Here, the district court properly instructed the jury that it "must presume that [Charles] is not guilty unless you are convinced from the evidence that he is guilty." Based on our Supreme Court's holding in Wesson , we reject Charles' claim that the district court used an erroneous verdict form. See also State v. Wilkerson , 278 Kan. 147, 158-59, 91 P.3d 1181 (2004).

JURY NULLIFICATION

Next, Charles contends that several of the jury instructions were clearly erroneous because the instructions failed to preserve the jury's power of nullification. Charles presents two complaints. First, he contends the district court erred by instructing the jury that it could only consider the lesser included offenses if it could not agree on guilt for the crime charged. Second, Charles argues the district court erred by instructing the jury that it "must" follow the law and it was the jury's "duty" to do so.

We have already set forth the three-step standard of review when analyzing jury instruction issues. McLinn , 307 Kan. at 317. If there was no objection to the complained-of instruction, this court applies the clearly erroneous standard for reversal. K.S.A. 2017 Supp. 22-3414(3) ; State v. Williams , 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).

Jury nullification is

" '[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.' Black's Law Dictionary 875 (8th ed. 2004)." Silvers v. State , 38 Kan. App. 2d 886, 888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008).

See State v. McClanahan , 212 Kan. 208, 213, 510 P.2d 153 (1973).

Sequential consideration of lesser included offenses

The district court instructed the jury on several lesser included offenses. As part of the instructions, the district court informed the jury that it could only consider the lesser included offenses if it did not agree that the defendant was guilty of the greater offense. Charles complains that requiring the jury to consider the offenses sequentially coerced it to find him guilty of the more serious charge and violated its power of nullification.

In State v. Smith , No. 117,423, 2018 WL 6712629, at *7 (Kan. App. 2018) (unpublished opinion), petition for rev. filed January 16, 2019, this court rejected a similar argument, finding "[s]equential consideration of lesser included offenses is legally appropriate." Relying on State v. Parker , 301 Kan. 556, 561, 344 P.3d 363 (2015), and State v. Trujillo , 225 Kan. 320, 324, 590 P.2d 1027 (1979), this court found that instructing the jury to consider the lesser offenses sequentially and in descending order of severity is an orderly method of consideration and does not coerce the jury into returning a guilty verdict for the more severe charge. Smith , 2018 WL 6712629, at *7.

Although this court's decision in Smith is not final, we adopt the reasoning in that case and reject Charles' claim that the district court erred by instructing the jury to consider the lesser included offenses sequentially. We point out that Charles' jury found him guilty of two lesser included offenses of domestic battery, so clearly the jury was not coerced to find him guilty of the more serious charge on those counts.

Jury "must" follow the law and had a "duty" to do so.

Next, Charles asserts the district court erred by instructing the jury that it "must" follow the law and it was the jury's "duty" to do so. He complains this language improperly compelled the jury to find him guilty rather than giving the jury the option of exercising its power of nullification.

In Instruction No. 1, the district court instructed the jury that it was the jury's "duty to consider and follow all of the instructions." Instruction No. 11 provided: "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions."

The State argues this issue should not be considered because of invited error. Under the invited error doctrine, a defendant cannot challenge an instruction on appeal, even as clearly erroneous under K.S.A. 2017 Supp. 22-3414(3), when there has been an on-the-record agreement to the wording of the instruction at trial. State v. Stewart , 306 Kan. 237, 248-49, 393 P.3d 1031 (2017). Here, Charles invited any error on Instruction No. 1 as he specifically requested the identical language. He also did not object to this instruction during the jury instruction conference. Charles also specifically requested the identical jury instruction as provided in Instruction No. 11, and he did not object to this instruction during the jury instruction conference. Thus, Charles is precluded from relief based on invited error. 306 Kan. at 248-49. In any event, Kansas appellate courts have approved of jury instructions with similar language, finding that a jury instruction directing the jury to follow the law is not error. See State v. Pennington , 254 Kan. 757, 764, 869 P.2d 624 (1994) ; McClanahan , 212 Kan. 208, Syl. ¶ 3.

CUMULATIVE ERROR

Finally, Charles claims he was denied a fair trial based on cumulative error. See State v. Santos-Vega , 299 Kan. 11, 27-28, 321 P.3d 1 (2014). But the only possible error we have identified in this opinion is prosecutorial error by invoking sympathy for the victim in closing argument. A single error cannot support reversal under the cumulative error doctrine. State v. Gonzales , 307 Kan. 575, 598, 412 P.3d 968 (2018).

Affirmed.


text:
    STATE of Kansas, Appellee, v. Tyler Lee FORD, Appellant.
    No. 119,328
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
    Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Tyler Lee Ford appeals the district court's order requiring that he register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., after his conviction for robbery. Ford makes several constitutional arguments, all of which are raised for the first time on appeal. First, Ford contends the district court violated his due process rights when it required him to register as a violent offender without notice or an opportunity to be heard. Second, Ford claims KORA unconstitutionally violates offenders' due process rights by failing to establish the State's burden of proof or a process by which to contest the district court's factual findings creating a duty to register. And third, Ford alleges the district court unlawfully increased his punishment based on improper judicial fact-finding in violation of his constitutional rights as recognized in Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000). After carefully considering Ford's arguments, we are unpersuaded by them and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On October 11, 2017, Ford robbed a convenience store. Ford entered the convenience store, pointed a handgun at the store clerk, and demanded money. The store clerk gave Ford about $132, which included a marked $2 bill. After receiving information concerning Ford's involvement with the robbery, officers obtained a warrant to search Ford's residence. While searching Ford's residence, officers found a loaded handgun and the marked $2 bill.

Ford was arrested and subsequently charged with aggravated robbery while armed with a dangerous weapon. As part of a plea agreement with the State, Ford waived his preliminary hearing and pled guilty to an amended charge of simple robbery, a severity level 5 person felony. The amended complaint did not state that Ford used a gun or another deadly weapon during the commission of the robbery. When giving the factual basis for the plea, the State explained that Ford pointed a black semiautomatic handgun at the store clerk and demanded money. The State also noted that officers located a .22-caliber black Ruger handgun with a loaded magazine in Ford's residence. The district court determined a factual basis existed for the plea and found Ford guilty of robbery. The district court did not inform Ford of his duty to register.

Prior to sentencing, a presentence investigation (PSI) report revealed that Ford's criminal history included four convictions of automotive burglary and a conviction of aggravated battery. The PSI also indicated that a special sentencing rule applied because Ford's crime of conviction was a "person felony committed with a firearm." When a firearm is used to commit a person felony, the sentence is presumptive imprisonment. K.S.A. 2018 Supp. 21-6804(h). The PSI noted that offender registration was required under K.S.A. 2018 Supp. 22-4902. Ford filed a motion for a departure from his presumed sentence.

At sentencing, the State opposed the departure motion, arguing Ford had committed armed robbery and pointed a gun at the clerk's head. The district court denied Ford's departure motion, reasoning: "Not only was this an armed robbery of a Kwik Shop with a gun used, and the court will make the finding of a weapon , you had just got out of prison." (Emphasis added.) The district court sentenced Ford to 57 months in prison with 24 months of postrelease supervision. Again, the district court did not mention registration.

Subsequent to sentencing, a disagreement arose concerning whether the journal entry should reflect that Ford must register as a violent offender because the crime was committed with a deadly weapon. At the hearing to resolve the journal entry, the State argued registration was required because the case involved an armed robbery and the district court "made a specific finding that a dangerous weapon had been involved." Ford's counsel responded: "What I have in my notes, judge, is that the court said the words [']that a gun was used in the commission of the crime,['] but there was no finding that it was a dangerous weapon and there was no finding that it was a registration order."

The district court determined that Ford must register as a violent offender, stating:

"The court specifically found a firearm was used in the commission of the offense. That requires registration....
"... [I]f there's any question whether a gun or a firearm is a dangerous weapon I will say that it is. And under Kansas law registration is required and it's the responsibility of the Department of Corrections to see that that is done."

The district court filed a journal entry which required Ford to register as a violent offender under KORA for 15 years after his release from prison because he committed a person felony with a deadly weapon.

Ford timely appeals.

I. DID THE DISTRICT COURT VIOLATE FORD'S DUE PROCESS RIGHTS BY REQUIRING HIM TO REGISTER AS A VIOLENT OFFENDER ?

Ford complains his due process rights were violated when the district court required him to register as a violent offender because he "had no notice nor meaningful opportunity to be heard on the court's discretionary finding that he register as a violent offender for 15 years for his conviction of robbery, which does not have a weapon as an element of the crime."

A. Should we consider this issue raised for the first time on appeal ?

Ford acknowledges that he raises this due process claim for the first time on appeal. Generally, an issue not raised before the district court-even a constitutional claim-may not be raised for the first time on appeal. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018).

"There are three exceptions to this rule: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason." State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Ford correctly argues that we may address the issue for the first time on appeal because such consideration is necessary to serve the ends of justice and prevent the denial of fundamental rights. See State v. Ibarra , 307 Kan. 431, 432, 411 P.3d 318 (2018) ; State v. Carter , 55 Kan. App. 2d 511, 519-20, 419 P.3d 55 (2018), rev. granted 309 Kan. ---- (January 11, 2019).

Under the Fourteenth Amendment to the United States Constitutions, no state may "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. In Carter , the defendant challenged the district court's finding that she used a deadly weapon when committing a crime and, thus, qualified as a violent offender under KORA. Although Carter raised this argument for the first time on appeal, a panel of this court considered her argument "because it presents only an issue of law and because consideration of it is necessary to serve the ends of justice." 55 Kan. App. 2d at 520. Like in Carter , consideration of Ford's due process claim is necessary to serve the ends of justice. Therefore, we will consider it.

Whether a defendant's right to due process was violated is a question of law over which we exercise unlimited review. State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018). When reviewing a due process claim, we first determine whether a protected liberty or property interest is involved. If so, we must then determine the nature and extent of the process that is due. Village Villa v. Kansas Health Policy Authority , 296 Kan. 315, 331, 291 P.3d 1056 (2013). Due process is flexible in that not all situations calling for procedural safeguards call for the same kind of procedure. See In re Care & Treatment of Ellison , 305 Kan. 519, 526, 385 P.3d 15 (2016). A due process violation exists only if the claimant is able to show that he or she was denied " 'a specific procedural protection to which he or she was entitled.' " In re K.E. , 294 Kan. 17, 22, 272 P.3d 28 (2012).

B. Was Ford given notice and a meaningful opportunity to be heard ?

Accepting at face value Ford's claim that KORA's registration requirements impinge on his protected liberty and property interests, Ford fails to show how the district court denied him a specific procedural protection to which he is entitled.

The basic elements of procedural due process are notice and "the opportunity to be heard at a meaningful time and in a meaningful manner." Ellison , 305 Kan. at 526. "To satisfy due process, notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of an action and to afford the parties an opportunity to present any objections. Mullane v. Central Hanover Tr. Co. , 339 U.S. 306, 314-15, 70 S. Ct. 652, 94 L.Ed. 865 (1950)." Johnson v. Brooks Plumbing , 281 Kan. 1212, 1215, 135 P.3d 1203 (2006).

An individual defined by KORA as a violent offender must register under the Act. State v. Marinelli , 307 Kan. 768, 774, 415 P.3d 405 (2018). A violent offender includes any person convicted of a person felony after July 1, 2006, when "the court makes a finding on the record that a deadly weapon was used in the commission of such person felony." K.S.A. 2018 Supp. 22-4902(e)(2). And, generally, an offender must register for 15 years if the offender is convicted of a person felony and "the court makes a finding on the record that a deadly weapon was used in the commission of such person felony." K.S.A. 2018 Supp. 22-4906(a)(1)(N).

At Ford's plea hearing, the State provided a factual basis for the plea and explained that Ford used a gun in the commission of the crime. Ford never objected to the State's factual basis. Given the factual basis that a gun (which we agree is a deadly weapon) was used by Ford to commit the robbery, Ford was put on notice at this point that he could be subject to a registration requirement. See State v. Smith-Parker , 301 Kan. 132, 154, 340 P.3d 485 (2014) ("A gun is unquestionably a deadly weapon."); Black's Law Dictionary 1909 (11th ed. 2019) (term "deadly weapon" includes "[a]ny firearm or other device ... calculated or likely to produce death"). But Ford argues the district court improperly failed to inform him about his registration obligations at the plea hearing as required by KORA. See K.S.A. 2018 Supp. 22-4904(a)(1)(A). However, this failure does not affect Ford's violent offender status or otherwise excuse his registration obligations. See 307 Kan. at 790-91.

According to our Supreme Court, "[n]o provision in KORA creates a consequence for the [district court's] failure to inform a defendant [of his or her duty to register] at the appropriate time.... [T]he Act itself imposes the duty to register upon [the defendant], rather than the court's order." 307 Kan. at 790. The purposes of the notice requirement are ensuring offenders know their registration obligations and preventing lack of knowledge from being raised as a defense to a later charge of failing to register. 307 Kan. at 790. But "neither the fact of notice or its timing are dispositive to whether a person is an 'offender' and, therefore, subject to registration requirements." 307 Kan. at 791. As a result, the district court's failure to satisfy K.S.A. 2018 Supp. 22-4904(a)(1)(A) does not entitle Ford to any relief at this stage of the proceedings. See State v. Wren , No. 118,046, 2018 WL 3077193, at *2 (Kan. App. 2018) (unpublished opinion).

According to the record, notice was provided to Ford in multiple ways. First, in addition to the notice provided by the factual basis at the plea hearing, the PSI prepared prior to sentencing put Ford specifically on notice that he was subject to a registration requirement. The PSI specifically stated that a special sentencing rule applied because Ford had committed a person felony with a firearm and that registration was required. Second, during sentencing, the district court found that Ford used a gun in the commission of the robbery, a person felony, and specifically noted that "the court will make the finding of a weapon." Ford did not object to this finding, nor did Ford object to the PSI. Although the district court did not use the words "deadly" or "dangerous" from the bench, it noted a gun was used and made the specific "finding of a weapon." Third, the completed sentencing journal entry indicated that Ford had committed the crime of conviction with a deadly weapon. In the journal entry, the district court checked a box labeled "Yes" next to the question asking whether the offender committed the current crime with a deadly weapon. As a result of this finding, an offender registration supplement was attached to the journal entry, showing Ford's duty to register as a violent offender for 15 years because he was convicted "of a person felony with court finding on the record that such felony was committed with a DEADLY WEAPON." Our Supreme Court has found such findings made in the sentencing journal entry to be sufficient to require registration. Marinelli , 307 Kan. at 788-89.

Ford was also given the opportunity to be heard. As we have already noted, after sentencing the State and Ford disputed whether the journal entry should include a registration requirement. At a special hearing to resolve the journal entry, Ford was given the opportunity to argue that, although the district court found a gun was used, "there was no finding that it was a dangerous weapon and there was no finding that it was a registration order." In response, the district court then clarified that the gun was a dangerous weapon that was used in the commission of the offense. Ford did not object to this finding nor did he ask the court to reconsider its ruling.

We conclude the district court properly found on the record that Ford used a deadly weapon, and it did not violate Ford's due process rights when it required him to register as a violent offender.

II. DOES KORA VIOLATE OFFENDERS ' DUE PROCESS RIGHTS ?

Ford next contends that KORA is unconstitutional on its face because (1) the Act fails to specify the burden of proof required to find that an offender used a deadly weapon when committing a person felony and (2) the Act does not give offenders an opportunity to contest the district court's exercise of a discretionary finding. Ford asserts these failures violate defendants' procedural due process rights.

Again, Ford acknowledges he did not challenge the constitutionality of KORA before the district court. But Kansas courts have considered the constitutionality of KORA for the first time on appeal to serve the ends of justice and prevent the denial of fundamental rights. See State v. Watkins , No. 110,702, 2014 WL 4231269, at *1 (Kan. App. 2014) (unpublished opinion), aff'd 306 Kan. 1093, 401 P.3d 607 (2017).

Determining a statute's constitutionality is a question of law subject to unlimited review. " 'We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity.' " State v. Petersen-Beard , 304 Kan. 192, 194, 377 P.3d 1127, cert. denied 137 S. Ct. 226 (2016). Our duty is to interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the Legislature's apparent intent. State v. Gonzalez , 307 Kan. 575, 579, 412 P.3d 968 (2018).

As stated above, the basic elements of procedural due process are notice and "the opportunity to be heard at a meaningful time and in a meaningful manner." Ellison , 305 Kan. at 526. When determining what due process protections are required, we examine three factors:

"(1) the private interest affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirements would entail." In re Care & Treatment of Ontiberos , 295 Kan. 10, 22, 287 P.3d 855 (2012).

Ford first argues that due process requires a district court to find beyond a reasonable doubt that a defendant used a deadly weapon when determining whether that defendant is a violent offender under K.S.A. 2018 Supp. 22-4902(e)(2). Because K.S.A. 2018 Supp. 22-4902(e)(2) contains no explicit standard of proof, Ford claims the statute is unconstitutional. Second, Ford asserts that KORA violates his right to due process by providing no opportunity to contest the district court's exercise of the discretionary finding that he used a deadly weapon.

A. Does KORA fail to specify the burden of proof ?

Typically, statutes that fail to specify a particular standard of proof implicitly contain a preponderance of evidence standard. See State v. Spain , 263 Kan. 708, 714, 953 P.2d 1004 (1998). In recent Kansas Supreme Court opinions addressing K.S.A. 22-4902(e)(2), the court mentioned no burden of proof attached to the district court's finding that the defendant used a deadly weapon. See, e.g., Marinelli , 307 Kan. at 788-89.

The failure of K.S.A. 2018 Supp. 22-4902(e)(2) to mention a burden of proof suggests a preponderance of evidence standard. This conclusion is further supported by the Legislature's inclusion of a beyond reasonable doubt standard in subsection (c)(18) of K.S.A. 2018 Supp. 22-4902, which provides that a sex offender includes a person convicted of a crime involving "any act which has been determined beyond a reasonable doubt to have been sexually motivated." If we were to presume that proof beyond a reasonable doubt is required on all the district court's findings under K.S.A. 2018 Supp. 22-4902, then the language in K.S.A. 2018 Supp. 22-4902(c)(18) specifying the beyond reasonable doubt standard would become superfluous. See Patterson v. Cowley County, Kansas , 307 Kan. 616, 626, 413 P.3d 432 (2018) ("We generally presume 'the legislature does not intend to enact useless or meaningless legislation.' "). As a result, we conclude that the Legislature intended for the district court to use a preponderance of the evidence standard when determining whether a defendant used a deadly weapon under K.S.A. 2018 Supp. 22-4902(e)(2).

A preponderance of the evidence standard does not violate due process in this context because the function of a standard of proof is to instruct the fact-finder to the level of confidence that society expects for the particular decision. The different standards of proof reflect the differences in how society believes the risk of error should be distributed between the parties. See In re B.D.-Y. , 286 Kan. 686, 696, 187 P.3d 594 (2008).

The most stringent burden of proof-beyond a reasonable doubt-applies to criminal trials due to the gravity of the private interests affected. 286 Kan. at 691. Given the magnitude of the private interests wrongly lost when a criminal defendant is erroneously convicted of a crime, "society imposes almost the entire risk of error upon itself." Addington v. Texas , 441 U.S. 418, 424, 99 S. Ct. 1804, 60 L.Ed. 2d 323 (1979). As a result, due process requires the State to prove the guilt of an accused beyond a reasonable doubt on each element of the crime charged. See State v. Ta , 296 Kan. 230, 236, 290 P.3d 652 (2012). By contrast, the preponderance of the evidence standard reflects a belief that parties should share the risk of error equally. Addington , 441 U.S. at 423.

A preponderance of the evidence standard is presumptively applicable to civil actions unless " 'particularly important individual interests or rights are at stake.' " Nauheim v. City of Topeka , 309 Kan. 145, 152, 432 P.3d 647 (2019). Cases involving termination of parental rights and civil commitment are examples of actions that implicate individual interests so fundamental or important that due process requires a higher standard of proof than preponderance of the evidence. See Santosky v. Kramer , 455 U.S. 745, 768, 102 S. Ct. 1388, 71 L.Ed. 2d 599 (1982) (termination of parental rights); Addington , 441 U.S. at 431 (civil commitment); K.S.A. 2018 Supp. 38-2269(a) (clear and convincing standard of proof applies to all termination of parental rights cases); K.S.A. 2018 Supp. 59-2966 (clear and convincing standard of proof required for civil commitment of mentally ill).

However, the private interests affected by KORA registration are outweighed by the government's interests in public safety. More specifically, the risk of erroneously depriving defendants of their private interests by using a preponderance of the evidence standard in a deadly weapon finding is relatively low. KORA registration affects offenders' private interests by imposing reporting requirements and requiring them to pay registration fees. However, the registration requirements do not burden Ford's fundamental right to privacy. See State v. Adams , No. 114,276, 2016 WL 4499520, at *3 (Kan. App. 2016) (unpublished opinion); also see In re W.M. , 851 A.2d 431, 450-51 (D.C. 2004) (finding District of Columbia Sex Offender Registration Act infringes on no fundamental liberty interests). And as other states have recognized, offender registration requirements do not implicate interests as fundamental or important as those which trigger a heightened standard of proof. See In re W.M. , 851 A.2d at 455 ; J.J.F. v. State , 132 P.3d 170, 178-79 (Wyo. 2006).

In requiring states to use at least a clear and convincing evidence standard when terminating parental rights, the United States Supreme Court noted a magnified risk of erroneous fact-finding because the proceedings "employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge." Santosky , 455 U.S. at 762. The Court also noted that termination proceedings are frequently vulnerable to cultural or class bias because they involve parents who are often poor, uneducated, and members of minority groups, and the State's ability to present its case through experienced attorneys, medical experts, and involved agency caseworkers dwarfs the parents' ability to mount a defense. 455 U.S. at 763.

Conversely, whether a defendant used a deadly weapon is an objective, black-and-white standard not particularly susceptible to subjective values or biases of a judge. And concerns about disparities in litigation resources are not as prevalent in a deadly weapon finding as they are in a finding of parental unfitness. Using a preponderance of the evidence standard in a deadly weapon finding does not create an undue risk of an erroneous deprivation of private interests.

Weighing against a defendant's lesser private interests is the government's considerable interest in protecting the public. The purpose of KORA is to protect the public from designated offenders whom the Legislature has concluded are likely to reoffend. State v. Wilkinson , 269 Kan. 603, 609, 9 P.3d 1 (2000). Unlike other proceedings requiring a heightened standard of proof, the possible injury to a defendant from an erroneous classification as a violent offender under K.S.A. 2018 Supp. 22-4902(e)(2) is not "significantly greater than any possible harm to the state." Addington , 441 U.S. at 427. Although KORA registration affects an offender's private interests, the impacted interests are not as fundamental or important as the interests involved in the parent-child relationship or civil commitment. And given the government's compelling interest in protecting the public from violent offenses committed by recidivists, the State is not constitutionally required to bear a disproportionate share of the risk of error.

Due process does not require a district court to find beyond a reasonable doubt that a defendant used a deadly weapon when determining whether that defendant is a violent offender under K.S.A. 2018 Supp. 22-4902(e)(2).

B. Does KORA fail to provide an opportunity to contest a discretionary finding ?

Ford next claims KORA violates due process because the Act "does not give defendants a path or an opportunity to contest the court's exercise of a discretionary finding in K.S.A. 22-4902(e)(2)."

As Ford argues, K.S.A. 2018 Supp. 22-4902(e)(2) "does not affirmatively require the district court to consider and determine whether [the defendant] used a deadly weapon in the commission of [his or] her offense." See State v. Thomas , 307 Kan. 733, 750, 415 P.3d 430 (2018). But Ford fails to explain why due process requires KORA to outline a process for defendants to oppose the district court's exercise of its discretion to consider whether a deadly weapon was used.

Registration requirements under KORA are not part of an offender's criminal sentence. Thomas , 307 Kan. at 750. Instead, an offender's duty to register "springs into existence by operation of law immediately upon the existence of statutorily prescribed conditions." 307 Kan. at 750. Relevant to Ford's case, the obligation to register sprang into existence when two statutorily prescribed conditions existed: (1) his person felony conviction and (2) the district court's factual finding on the record that a deadly weapon was used in the commission of the crime.

The Kansas Supreme Court has rejected arguments that KORA requires additional procedural protections beyond those required to convict the defendant of the underlying offense and those necessary to deem the defendant an offender. In Wilkinson , the defendant pled no contest to incest and was ordered to register as a sex offender because the district court found beyond a reasonable doubt that the crime was sexually motivated. On appeal, Wilkinson argued this procedure violated his due process rights because KORA did not afford him a hearing to determine the degree of threat he posed to the public before requiring him to register. Our Supreme Court rejected Wilkinson's argument and held:

"[T]he only procedural due process to which Wilkinson was entitled was the process required to convict him of the underlying offenses ... and the due process necessary to certify his offenses as sexually violent crimes within the terms of the Act .... Assuming no constitutionally deficient procedure in arriving at the conviction and in certifying it as a sexually violent offense under the terms of the Act (neither of which is asserted), there is no risk that the lack of a hearing would lead to an erroneous application of the Act's mandatory requirements. [Citation omitted.]" 269 Kan. at 614.

The only procedural due process to which Ford was entitled was the process required to convict him of the underlying offense and the due process necessary to deem him a violent offender under KORA. Ford was considered a violent offender after the district court found that he used a deadly weapon in the commission of the crime. And like the requested preregistration hearing in Wilkinson , there is no risk that a defendant's lack of opportunity to contest the district court's exercise of its discretionary consideration would lead to an erroneous application of KORA's mandatory requirements. KORA does not violate defendants' due process rights by failing to include a specific process for a defendant to contest the district court's exercise of the discretionary finding that he or she used a deadly weapon.

In sum, KORA does not violate offenders' due process rights by failing to provide a burden of proof or failing to outline a process to contest a discretionary finding under K.S.A. 2018 Supp. 22-4902(e)(2). Accordingly, Ford fails to show that KORA is unconstitutional.

III. DID THE DISTRICT COURT VIOLATE FORD'S CONSTITUTIONAL RIGHTS ?

Finally, Ford contends the district court violated his constitutional rights as described in Apprendi when the judge-rather than a jury-determined that he used a deadly weapon in the commission of his crime, thus prompting the requirement that he register as a violent offender under KORA.

Ford failed to raise his Apprendi argument before the district court. However, Ford asserts we should consider his Apprendi claim for the first time on appeal to prevent the denial of a fundamental right. Ford correctly notes that our appellate courts have routinely addressed Apprendi issues raised for the first time on appeal to prevent the denial of a fundamental right. See State v. Unrein , 47 Kan. App. 2d 366, 369, 274 P.3d 691 (2012), rev. denied 297 Kan. 1256 (2013).

" 'Whether a defendant's constitutional rights as described under Apprendi were violated by a district court ... raises a question of law subject to unlimited review.' " State v. Huey , 306 Kan. 1005, 1009, 339 P.3d 211 (2017), cert. denied 138 S. Ct. 2673 (2018). Any fact necessary to increase the punishment for an offense other than a prior conviction must be established by a guilty plea or proved beyond a reasonable doubt to a jury. Apprendi , 530 U.S. at 490. But under Apprendi , only facts that increase the penalty, or punishment, for a crime need to be submitted to a jury. 530 U.S. at 490. In contrast, "[t]he legislature intended KORA to be civil and nonpunitive for all classes of offenders currently subject to its provisions." Huey , 306 Kan. at 1009. In fact, our Supreme Court has repeatedly rejected the argument that offender registration under KORA is punishment. See, e.g., Watkins , 306 Kan. at 1095 ; Huey , 306 Kan. at 1009-10 ; Petersen-Beard , 304 Kan. at 209.

In Huey , the Kansas Supreme Court reviewed procedural facts and arguments identical to Ford's arguments here. Huey claimed the district court's deadly weapon finding and resulting registration order violated his constitutional rights under Apprendi . However, Huey brought his claim for the first time on appeal, so he had not presented facts to the district court attempting to show that the registration's effects on him were punitive. The Kansas Supreme Court found that because the Kansas Legislature intended KORA to be a civil regulatory scheme-not punishment-a defendant must present "the clearest proof" that registration was punitive before the court would consider registration a criminal penalty and that Huey had not shown, as he must, that his registration requirements constituted punishment. 306 Kan. at 1010. "Because the registration requirements did not increase Huey's punishment ..., it was not necessary that Huey's use of a deadly weapon be found beyond a reasonable doubt by a jury." 306 Kan. at 1010.

Like Huey, Ford did not raise an Apprendi claim before the district court and has provided no fact-based record for this court to evaluate KORA's alleged punitive effects on him or any other violent offender. Thus, Ford has not shown that his registration requirements as a violent offender are punishment.

While Ford asserts Huey was wrongly decided, "[t]his court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position." State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Because the registration order did not increase Ford's punishment, it was unnecessary that Ford's use of a deadly weapon be found beyond a reasonable doubt by a jury. Ford's duty to register as a violent offender under KORA did not violate Apprendi .

Affirmed.