State v. Potts ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,302
STATE OF KANSAS,
Appellee,
v.
DEAARION POTTS,
Appellant.
SYLLABUS BY THE COURT
1.
When the sufficiency of the evidence is challenged in a criminal case, we review
the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate
court does not reweigh evidence, resolve conflicts in the evidence, or pass on the
credibility of witnesses.
2.
There is nothing in the statutory language of K.S.A. 2012 Supp. 21-5807(a)(3) or
K.S.A. 2012 Supp. 21-5801(a)(1) that restricts the scope of the burglary statute to
situations in which the defendant steals or intends to steal something from the interior of
a vehicle, as opposed to attempting to steal or actually stealing the vehicle itself.
3.
When a pretrial motion to suppress has been denied, the evidence must also be
objected to at the time it is offered during the trial in order to preserve the issue for
appeal.
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4.
The adult certification process under the Juvenile Justice Code is a jurisdictional
determination, rather than a sentencing question. Therefore, the judicial factfinding
necessary to certify a juvenile for adult prosecution does not run afoul of Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed 2d 435 (2000).
5.
A criminal sentence is effective when pronounced from the bench at the
sentencing hearing; it does not derive its effectiveness from the journal entry. Therefore,
a journal entry that imposes a sentence that varies from the sentence pronounced from the
bench is erroneous and must be corrected to reflect the actual sentence imposed.
6.
A journal entry of judgment may be corrected "at any time" by a nunc pro tunc
order. Nunc pro tunc orders are appropriate to correct clerical errors arising from
oversight or omission.
7.
When the journal entry of judgment reflects the sentence that the district
pronounced from the bench it cannot be corrected by a nunc pro tunc order.
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed June 24,
2016. Convictions affirmed, sentences vacated in part, and case remanded with directions.
Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
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Johnathan M. Grube, assistant district attorney, argued the cause, and Shawn M. Boyd, assistant
district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: On the night of October 20, 2012, 15-year-old Deaarion Potts drove
three acquaintances around Kansas City, Kansas, in a car that Potts stole earlier that day.
During the excursion, Potts drove up behind a car and his three passengers proceeded to
fire weapons at the vehicle, killing Ramon Bradley, one of the car's four occupants. As a
result, Potts was charged with felony murder, criminal discharge of a firearm at an
occupied vehicle, and burglary. After the district court authorized Potts to stand trial as an
adult, a jury found him guilty of all three crimes. The district court imposed a controlling
sentence of life without the possibility of parole for 20 years.
On appeal, Potts raises several arguments. First, he argues that because it was
possible Bradley sustained his fatal gunshot wound during the initial moments of the
shooting—when Potts claims he was not intending to aid his companions with the
shooting—the State presented insufficient evidence to convict him of either felony
murder or criminal discharge of a firearm. Potts also argues that in order for the State to
have convicted him of burglary, it had to present evidence that he intended to steal
something from within the car he broke into and stole. Because his conviction for
burglary was based on his act of breaking into the car that he stole, he contends that his
conviction must be reversed. Additionally, Potts argues that (1) his statements to police
should have been suppressed because they were involuntary; (2) the district court's jury
instruction on aiding and abetting was erroneous; (3) cumulative error deprived him of a
fair trial; (4) the district court unconstitutionally enhanced his sentence by making factual
findings that authorized the State to prosecute him as an adult; and (5) the district court
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incorrectly noted within the journal entry of judgment that Potts was subject to lifetime
postrelease supervision for all his convictions.
We reject his arguments and affirm his convictions and sentence. However, we
conclude that while the district court properly sentenced Potts to lifetime parole for
felony murder, the journal entry of judgment indicates that lifetime postrelease
supervision was also imposed as a result of his convictions for burglary and criminal
discharge of a firearm when only a maximum of 36 months is allowed. The State
concedes the issue. Accordingly, we vacate only that portion of his sentence and remand
for resentencing.
FACTS
During the late evening hours of October 20, 2012, Tracy Jordan and Eddie
London drove Jordan's black Pontiac Grand Am to a community center located near
Tenth Street and Washington Boulevard in Kansas City, Kansas, to pick up Jordan's
brother, Charles Shelby, and his friend, Bradley, from a function that was ending. After
picking them up, the group traveled eastbound on Washington Boulevard with the plan of
going to the Power & Light District in downtown Kansas City, Missouri. Jordan drove;
London sat in the front passenger seat; and Shelby and Bradley rode in the backseat.
Once the two eastbound lanes of Washington Boulevard pass Fourth Street, the
lanes slowly curve south and eventually split, with the left lane exiting onto eastbound
I-70 (taking travelers into Missouri). The right lane proceeds south and then makes a
sharp curve to the east. At this point, the lane is called Minnesota Avenue; it travels a
short distance east until meeting with Third Street. Proceeding directly east through the
intersection of Third and Minnesota would cause a person to travel the wrong way on
Fairfax Trafficway.
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As the group traveled around the first curve on Washington Boulevard, preparing
to take the exit for eastbound I-70, someone started firing multiple gunshots at them.
Moments later, the rear window shattered. Jordan noticed that the gunfire was coming
from a red car directly behind them. Jordan continued driving in the right lane, eventually
going around the sharp curve and coming to the intersection of Third and Minnesota. He
drove through the intersection, going the wrong way up Fairfax Trafficway. At that point,
the red car stopped its pursuit and turned left on Third Street.
Sometime during the shooting, but after the rear window had been shot out,
Shelby heard Bradley say, "I'm hit."
Due to the damage the car sustained, Jordan's Grand Am eventually came to a stop
on Fairfax Trafficway. Shelby estimated that more than a minute had passed from the
time he heard the first shot to the time the car stopped on Fairfax; London estimated
2 minutes had passed. Jordan got out of the car and waived down a truck driver, asking
him to call the police. Police eventually responded to the scene and discovered that
Bradley had died as a result of a single gunshot wound.
Police did not find any weapons or bullet casings inside the Grand Am. Police
noted that the car had sustained several bullet holes, indicating that it was fired upon from
behind.
During the investigation of the shooting, police scavenged the area on eastbound
Washington Boulevard where the initial shots occurred and discovered bullet casings
beginning just after the exit sign for Minnesota Avenue/Fairfax District. The sign noted
that the exit—where traffic lines begin denoting separation of the two eastbound lanes—
was 1/8-mile away. In this general area, police discovered a total of 31 shell casings—
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nineteen 7.62x39 mm casings and twelve 9 mm casings. Near the intersection of Third
and Minnesota—where the red car ended its pursuit—police found 20 shell casings—
fourteen 7.62x39 mm casings and six 9 mm casings.
Police eventually found a red Dodge Intrepid parked in the middle of an alley near
25th and Garfield. The interior of the car was partially burnt. Someone had attempted to
set the car on fire by igniting a gas can and placing it behind the front passenger seat.
Police noted that the outer plate of the ignition switch was missing, indicating that
someone had used a screwdriver to start the car. There were no weapons found inside,
and there was no evidence that the car had sustained any gunshot damage. But police did
find two 9 mm shell casings inside the car.
In all, police recovered 53 shell casings—thirty-three 7.62x39 mm casings and
twenty 9 mm casings. Law enforcement determined that all 33 of the 7.62x39 mm
casings were fired from the same gun. Of the twenty 9 mm casings recovered, 13 were
fired from one gun, and seven were fired from another. In other words, three firearms
were involved in the shooting—one firing 7.62x39 mm bullets and two firing 9 mm
bullets.
A forensic scientist from the KBI testified that the most common firearm designed
for 7.62x39 mm ammunition is an AK-47 rifle. In comparison, 9 mm ammunition is
typically used in handguns. The scientist also estimated that an AK-47 without a shoulder
stock is at least 26 inches long and that a shoulder stock generally adds another 8 to 10
inches in length. The scientist said that a 9 mm handgun is typically around 10 inches in
length.
During Bradley's autopsy, a forensic pathologist recovered the fatal bullet. The
forensic scientist examined the bullet. Though he could not determine its exact caliber,
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the scientist stated that based on its characteristics, the bullet was "consistent with a rifle
caliber rather than a handgun caliber."
A couple of days after the shooting, police learned that 16-year-old D'Andre Hill
may have been involved in the shooting. On October 24, 2012, Hill, accompanied by his
mother, spoke with police about the shooting. Hill told police that he and Deandre Harris
(age 17) were at the Chelsea Apartment complex off Seventh Street when Potts (age 15)
and Bobby Hale, Jr., (age 18 or 19) picked them up in a red car. As Potts drove, Hale sat
in the front passenger seat, and Hill and Harris sat in the back seat.
According to Hill, as they traveled eastbound on Washington Boulevard, he heard
Hale say, "There they go." Then, Hill heard a "boom" and realized that Hale was firing a
rifle at a black car in front of them. Hill and Harris, who were armed with handguns,
joined in and started firing their weapons at the car while Potts drove. As Potts followed
the car down the Third Street exit, he drove into a curb or guardrail, but kept following
the black car. Hill said that Potts stopped following the car once it drove through the
intersection at Third and Minnesota and proceeded the wrong way on Fairfax Trafficway.
Potts then turned left onto Third Street and drove away.
Hill said that no one discussed the shooting prior to it occurring.
On October 26, Potts, accompanied by his grandfather, came to the police station.
After being advised of and waiving his Miranda rights, Potts spoke with two detectives.
He told them that on the day of the shooting, he was walking by himself when he got
tired and decided to steal a red Dodge Intrepid. He drove the car to an apartment complex
off Seventh Street where he picked up Hale, Hill, and Harris. Hale sat in the front seat,
Hill and Harris sat in the back seat. Potts told detectives that he was driving east on
Washington Boulevard when he heard a "boom." He looked over and saw that Hale had
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fired, in Potts' words, a "big gun" out the front passenger-side window at a car traveling
in front of them. As Hale fired his weapon at the car, Potts said that he sped up and
followed the car until it went down the wrong way of a one-way street. Afterwards, Potts
drove his companions back to the apartment complex and dropped them off. He then
parked the car and walked to his grandmother's house.
Potts told detectives that he did not realize anyone in the car was armed prior to
the shooting.
After charging Potts in juvenile court with felony murder and criminal discharge
of a firearm at an occupied vehicle, the State filed a motion seeking authorization to
prosecute Potts as an adult pursuant to K.S.A. 2012 Supp. 38-2347. After conducting an
evidentiary hearing, the district court granted the State's motion. The State filed an
amended information charging Potts with the additional crimes of vehicular burglary and
theft.
At Potts' jury trial, Hill testified for the State. Other than a few additional details,
Hill's account of the shooting was similar to the account he gave to detectives. Hill again
said that he and Harris were picked up at the apartment complex by Potts who was
driving a red Dodge Intrepid. Hale sat in the front seat. Hill said that they left the
apartment complex to buy cigars.
Hill indicated that somewhere around the area of Fifth and Washington, he heard
Hale say, "There they go." Then he heard gunshots, looked up, and saw Hale firing an
assault rifle out the front passenger-side window at a car. Hill said that he thought they
were getting shot at, so he began shooting at the car with his handgun. Hill said that when
they started shooting at the car, it was a couple of car lengths away.
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Hill said that he and Harris were both armed with 9 mm handguns while Hale was
armed with an assault rifle. Hill described Hale's gun as being long, estimating that it was
2 feet in length. Hill claimed that he did not know Harris and Hale were armed until the
shooting occurred. Hill said that prior to the shooting, they had not discussed looking for
a particular vehicle.
Hill said that as they were going around a curve, they hit a curb. Initially, Hill said
that everyone stopped firing their weapons at this point. But later on cross-examination,
Hill said that the shooting stopped once Potts turned left onto a street, presumably Third
Street. Hill said that after the shooting, Potts drove them back to the Chelsea apartments
where everyone got out of the car and left. Hill and Harris returned later and drove the car
to an alley, set fire to it, and left. Hill said that after throwing his gun into a sewer, he
returned to the apartment complex.
At the end of the State's case-in-chief, the district court granted Potts' motion for a
directed verdict on the theft count due to the State failing to put on any evidence to
establish the car's owner.
Potts presented the testimony of Dwight Alexander, an attorney who, at the
request of defense counsel, timed how long it took to drive the portion of Washington
Boulevard where the shooting took place. Alexander testified that the speed limit in that
area is 30 miles per hour. Alexander said that going the speed limit, it took him 16.47
seconds to travel from the 1/8-mile exit sign for Minnesota Avenue/Fairfax District to the
start of the exit for Minnesota Avenue/Fairfax District. From the exit sign to the stop sign
at the intersection of Third Street and Minnesota Avenue, it took 39.27 seconds to travel
that distance going the speed limit. Alexander noted that he had to slow down in order to
negotiate the shape curve leading onto Minnesota Avenue.
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The jury found Potts guilty of felony murder, criminal discharge of a firearm at an
occupied vehicle, and burglary. More facts will be stated as they become pertinent to
issues discussed below.
FELONY MURDER AND CRIMINAL DISCHARGE OF A FIREARM
Potts argues that his convictions for felony murder and criminal discharge of a
firearm at an occupied vehicle should be reversed because, according to him, the
evidence was inconclusive as to whether he intended to aid his companions (particularly
Hale) when they initially fired their weapons at the Grand Am. Potts contends that Hale,
his front-seat passenger, started shooting at the Grand Am without any warning and that
the bullet which killed Bradley was fired from Hale's gun. Potts claims that because it is
possible Hale fired the fatal shot before he, Potts, acted in a manner which aided Hale and
the others with the shooting (i.e., speeding up in order to stay close to the Grand Am), the
evidence was insufficient to convict him of either criminal discharge of a firearm or
felony murder.
When the sufficiency of the evidence is challenged in a criminal case, we review
the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. State v.
Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). An appellate court does not reweigh
evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v.
McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011). This court has also recognized
that there is no distinction between direct and circumstantial evidence in terms of
probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). "A conviction of
even the gravest offense can be based entirely on circumstantial evidence and the
inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the
right to make the inference." McCaslin, 291 Kan. 697, Syl. ¶ 9.
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Felony murder is the killing of a human being committed "in the commission of,
attempt to commit, or flight from an inherently dangerous felony." K.S.A. 2012 Supp.
21-5402(a)(2). Criminal discharge of a firearm at an occupied vehicle is considered an
inherently dangerous felony for purposes of applying the felony-murder rule. See K.S.A.
2012 Supp. 21-5402(c)(1)(O).
The district court instructed the jury that in order to convict Potts of criminal
discharge of a firearm at an occupied vehicle, it had to find that Potts or another for
whose conduct Potts was criminally responsible: (1) discharged a firearm at the Grand
Am; (2) did so recklessly and without authority; (3) the Grand Am was occupied by a
person, regardless of whether this was known by Potts or his companions at the time of
the shooting; and (4) the shooting caused great bodily harm to Bradley. See K.S.A. 2012
Supp. 21-6308(a)(1)(B) and (b)(1)(B). In order to hold Potts criminally responsible for
the conduct of his companions, the jury was instructed:
"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime. All participants in a crime are equally
responsible without regard to the extent of their participation. Mere association with the
principles who actually commit the crime or mere presence in the vicinity of the crime is
insufficient to establish guilt as an aider and abettor."
We have repeatedly stated that if someone dies during the course of an inherently
dangerous felony, such as criminal discharge of firearm at an occupied vehicle, "all the
participants . . . [are] equally guilty of the felony murder, regardless of who fired the fatal
shot." State v. Thomas, 239 Kan. 457, 462, 720 P.2d 1059 (1986). All participants in a
felony murder are principals. See State v. Littlejohn, 260 Kan. 821, 822, 925 P.2d 839
(1996); Thomas, 239 Kan. at 462.
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Potts' sufficiency argument fails to account for direct and circumstantial evidence
that the jury could have relied on to conclude that he intended to aid his companions with
the shooting at its very beginning. The jury was presented with evidence establishing that
Potts stole a car prior to the shooting and that Hale—armed with an assault rifle that was
at least 2 feet in length—got into the car and sat in the front passenger seat as Potts drove.
After picking up Hill and Harris at the apartment complex, Potts drove the car east on
Washington Boulevard. Hill's testimony indicated that somewhere around Fifth Street
and Washington Boulevard, Hale said, "There they go," and then he started firing his
weapon at the Grand Am. Hill and Harris soon joined in by firing their handguns at the
car. Police discovered 31 shell casings (nineteen 7.62x39 mm casings and twelve 9 mm
casings) on eastbound Washington Street beginning just past the 1/8-mile exit sign for
Minnesota Avenue/Fairfax District, which is past the intersection of Fourth Street and
Washington Boulevard.
Based on this evidence, the jury could have inferred that Potts stole the car for the
purpose of acquiring transportation in order to commit the shooting. The fact that Hale
got into the car and sat next to Potts while armed with an assault rifle (a weapon not
easily concealed) supports this inference. Hale's statement of "There they go" indicates a
prearranged plan to commit the shooting because the statement implies Potts would know
that Hale was referring to the occupants of the Grand Am. Finally, instead of simply
stopping the car or pulling over, Potts reacted to the initial shots by speeding up and
following the Grand Am for a considerable distance, which included driving past an exit
for I-70 and pursuing the car around a sharp curve leading onto Minnesota Avenue,
thereby allowing his companions (based on the evidence collected near the intersection of
Third and Minnesota) to fire their weapons 20 more times at the car. Accordingly, the
State presented sufficient evidence to show that Potts, before and during the incident,
intended to aid his companions with firing their weapons at the Grand Am. Because
Ramon Bradley died as a result of the shooting, the evidence was also sufficient for the
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jury to find Potts guilty of felony murder and criminal discharge of a firearm at an
occupied vehicle.
VEHICULAR BURGLARY
Potts was convicted of burglary in violation of K.S.A. 2012 Supp. 21-5807(a)(3)
based on his act of illegally entering and stealing the Dodge Intrepid that was used in the
shooting. Potts contends that his conviction must be reversed because, according to him,
an unauthorized entry into a vehicle with the intent to steal that very same vehicle is not
criminalized by the burglary statute. Rather, the statute criminalizes the unauthorized
entry into a vehicle with the intent to steal property located within the vehicle.
Accordingly, Potts argues that because there was no evidence presented at trial that he
entered the Dodge Intrepid with the intent to steal anything from within the vehicle, his
conviction for vehicular burglary must be reversed.
Again, when the sufficiency of the evidence is challenged in a criminal case, we
review the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. Frye, 294
Kan. at 374-75. An appellate court does not reweigh evidence, resolve conflicts in the
evidence, or pass on the credibility of witnesses. McCaslin, 291 Kan. 697, Syl. ¶ 8.
To the extent that Potts' argument requires interpretation of the burglary statute, this court
exercises unlimited review. See State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
K.S.A. 2012 Supp. 21-5807(a)(3) states in pertinent part that burglary is entering
into vehicle without authority with intent to commit a theft "therein." Theft is defined in
pertinent part as obtaining or exerting unauthorized control over property with the intent
to permanently deprive the owner of the use or benefit of the property. K.S.A. 2012 Supp.
21-5801(a)(1). As the language of the burglary statute indicates, proof that the defendant
completed a theft is not required for a conviction. Instead, the evidence must show that
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the defendant illegally entered the vehicle with the intent to commit a theft therein. See
State v. Rush, 18 Kan. App. 2d 694, 701, 859 P.2d 387 (1993), rev'd on other grounds
255 Kan. 672, 877 P.2d 386 (1994).
Potts argues that the legislature's use of the word "therein" (a word meaning "in or
into that place or thing," see the Merriam Webster Dictionary [Online ed. 2016]) shows
that the legislature intended to proscribe the act of entering a vehicle without authority for
the purpose of stealing something from within the vehicle rather than entering the vehicle
with the intent to steal the vehicle.
As Potts acknowledges, the Court of Appeals rejected this argument in State v.
Jones, 29 Kan. App. 2d 936, 34 P.3d 82 (2001), rev. denied 273 Kan. 1038 (2002), but he
argues that the court's reasoning for doing so ignored the language of K.S.A. 21-3715(c),
the predecessor to K.S.A. 2012 Supp. 21-5807(a)(3). K.S.A. 21-3715(c) defined burglary
as "knowingly and without authority entering into or remaining within any . . . motor
vehicle . . . with intent to commit a felony, theft or sexual battery therein." Like Potts, the
defendant in Jones argued that by including "therein" within the statutory definition of
vehicular burglary, the legislature distinguished an intent to commit a theft within the
vehicle (i.e., stealing an item located inside the vehicle) from the intent to commit a theft
of the vehicle. Accordingly, the defendant argued that he could not be convicted of
burglary based on his act of entering a vehicle with the intent to steal it.
The Jones court construed the defendant's argument as essentially contending that
"because the entry of the vehicle was a necessary part of the theft of the vehicle," the two
crimes merged together, preventing his prosecution for both crimes. 29 Kan. App. 2d at
937. Rejecting this argument, the court reasoned that burglary and theft are separate
crimes with distinct elements. "[T]he fact that one necessarily precedes the other does not
demonstrate a merger of the offenses any more than a burglary of a house, although
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necessary to the completion of some offense inside the house, merges with that offense
upon its completion." Jones, 29 Kan. App. 2d at 939.
Admittedly, the Jones court failed to precisely address the defendant's argument
regarding the impact of the word "therein" upon the mens rea element of vehicular
burglary. But the court did touch upon the fact that burglary and theft are separate crimes
and that if a person unlawfully enters a vehicle with the intent to commit a theft, he or she
is guilty of burglary, regardless of the property the person intended to steal after entering
the vehicle. There is nothing in the statutory language of K.S.A. 2012 Supp.
21-5807(a)(3) or K.S.A. 2012 Supp. 21-5801(a)(1) that restricts the scope of the burglary
statute to situations in which the defendant steals or intends to steal something from the
interior of a vehicle, as opposed to attempting to steal or actually stealing the vehicle
itself. Simply stated, a person who illegally enters a car for the purpose of completing a
theft—be it hotwiring a car or removing a car stereo—necessarily intends to commit a
theft inside the vehicle (i.e., therein) and may be properly convicted of vehicular burglary
under K.S.A. 2012 Supp. 21-5807(a)(3).
Courts from other jurisdictions with similar vehicular burglary statutes have
reached the same conclusion. In Illinois, where vehicular burglary is defined as a
knowing entry without authority into "a motor vehicle . . . or any part thereof, with intent
to commit therein a felony or theft," see 720 Ill. Comp. Stat. Ann. 5/19-1(a) (2014), the
courts have rejected the same argument Potts makes in this case—that entry into a vehicle
with the intent to steal the vehicle itself (as opposed to something "therein") does not
constitute a burglary. See People v. Buckner, 203 Ill. App. 3d 525, 535, 561 N.E.2d 335
(1990) (noting that if the court adopted defendant's construction of vehicular burglary
statute, "a person who entered a car to steal something from within would be punished for
burglary but a person breaking in to steal the car itself would be guilty of theft only");
People v. Mullinex, 125 Ill. App. 3d 87, 89-91, 465 N.E.2d 135 (1984); People v.
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Sansone, 94 Ill. App. 3d 271, 273-74, 418 N.E.2d 862 (1981). In Florida, where vehicular
burglary is defined as an entry into "a structure or a conveyance with the intent to commit
an offense therein," see Fla. Stat. Ann. § 810.02 (2007), the courts have also rejected the
argument that the statute ought not to apply when the only intent is to steal the vehicle
itself. See, e.g., State v. Stephens, 601 So. 2d 1195, 1196-97 (Fla. 1992) (The court noted
that "therein" is synonymous with "in that place" and that use of the word "therein"
within vehicular burglary statute "places no requirement that the crime must be one that
can be completed solely within the fixed limits of that particular place, only that the
crime is intended to be committed there. This obviously can include an intent to commit
car theft, because such a crime can be committed 'in that place.'"). Accord State v. Griffin,
116 N.M. 689, 694, 866 P.2d 1156 (1993) (construing New Mexico's vehicular burglary
statute and concluding that "[b]reaking into a car with the intent to steal the car qualifies
as an intent to commit a theft 'therein'").
Potts does not dispute that the evidence presented at trial established he did not
have permission to take the Dodge Intrepid. He simply argues that his act of illegally
entering the car with the intent to steal the car is insufficient to sustain his conviction for
vehicular burglary. Based on our construction of K.S.A. 2012 Supp. 21-5807(a)(3), we
reject Potts' argument and affirm his conviction for vehicular burglary.
MOTION TO SUPPRESS
Next, Potts argues that the district court erred in failing to suppress his statements
to police because his statements were involuntarily made. Potts acknowledges that he
failed to object at trial when Detective Angela Garrison testified about Potts' statements
to police. But he argues that notwithstanding the lack of a contemporaneous objection,
this court should address the merits of this evidentiary issue in order to serve the ends of
justice or to prevent the denial of fundamental rights. He also argues that judicial
economy would be promoted by addressing the issue now rather than forcing him to file a
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K.S.A. 60-1507 motion based on ineffective assistance of trial counsel for failing to
object at trial.
We reject Potts' invitation to address this issue. In State v. Houston, 289 Kan. 252,
270, 213 P.3d 728 (2009), we stated:
"[W]e hold that when a pretrial motion to suppress has been denied, the evidence must
also be objected to at the time it is offered during the trial in order to preserve the issue
for appeal. This holding is also consistent with the language in K.S.A. 60-404—objection
to the evidence must be 'timely interposed'—and consistent with this court's longstanding
characterization of the statutory language as requiring a 'contemporaneous' objection.
Among other advantages, this holding allows a court to rule on the evidence before trial,
but after hearing how the evidence unfolds during trial, allows the court to be prepared—
after timely trial objection—to reconsider its original ruling."
Further, it should be noted that Potts' statements to police played a central role in
his defense against the charges of felony murder and criminal discharge of a firearm at an
occupied vehicle. Defense counsel performed an extensive cross-examination of
Detective Garrison regarding Potts' statements to police. During this cross-examination,
defense counsel was able to highlight for the jury Potts' statements indicating that he was
not aware his companions were armed prior to the shooting; that the shooting was
spontaneous, brief, and surprised him, and that as soon as he could, he stopped following
the Grand Am by turning onto Third Street. Defense counsel used these statements in her
closing argument to contend that Potts should not be found guilty of either criminal
discharge of a firearm at an occupied vehicle or felony murder because he never intended
to aid his friends with shooting at the Grand Am. Accordingly, defense counsel's failure
to raise a contemporaneous objection during Garrison's testimony concerning Potts'
statements may have been a strategic decision that will prove to be unchallengeable in a
later K.S.A. 60-1507 motion raising ineffective assistance of counsel. See Rowland v.
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State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009) (If counsel has made a strategic
decision after making a thorough investigation of the law and the facts relevant to the
realistically available options, then counsel's decision is virtually unchallengeable.).
Consequently, Potts' judicial economy argument for why this court should address his
unpreserved evidentiary issue on direct appeal is not persuasive.
We decline to address Potts' argument regarding the admission of his statements
into evidence because he failed to preserve the issue for appellate review.
JURY INSTRUCTION ON AIDING AND ABETTING
Next, Potts argues that the district court's jury instruction on aiding and abetting
was erroneous because it failed to clearly convey that Potts, in order to be found guilty of
criminal discharge of a firearm at an occupied vehicle, needed to act intentionally in
aiding Hale with shooting at the Grand Am. To remedy this, Potts contends that the
statutory definition of intentional conduct should have accompanied the instruction on
aiding and abetting culpability. See K.S.A. 2012 Supp. 21-5202(h) ("A person acts
'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a
result of such person's conduct when it is such person's conscious objective or desire to
engage in the conduct or cause the result.").
Potts concedes that he did not request the instruction or object to the district court's
jury instruction on aiding and abetting. Accordingly, review of this issue is controlled by
K.S.A. 22-3414(3) and the stairstep analytical process set out in State v. Herbel, 296 Kan.
1101, Syl. ¶¶ 7-8, 299 P.3d 292 (2013), and State v. Williams, 295 Kan. 506, 511, 286
P.3d 195 (2012). As Williams articulated, K.S.A. 22-3413(3) creates a procedural hurdle
when a party fails to object because the statute establishes a preservation rule for
instruction claims on appeal. It provides, in part, that no party may assign as error a
18
district court's giving or failure to give a particular jury instruction, including a lesser
included crime instruction, unless the giving or failure to give the instruction is clearly
erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection
in the district court. Williams, 295 Kan. at 512-13.
To establish that the giving or failure to give an instruction was clearly erroneous,
the reviewing court must determine whether there was any error at all. This requires
demonstrating that giving the proposed instruction would have been both legally and
factually appropriate, employing an unlimited review of the entire record. Williams, 295
Kan. at 515-16. And if error is found on that basis, then the court moves to a reversibility
inquiry in which it assesses whether it is firmly convinced the jury would have reached a
different verdict had the instruction been given. The defendant maintains the burden to
establish the degree of prejudice necessary for reversal. 295 Kan. at 516.
The district court gave the following instruction (based on PIK Crim. 4th 52.140)
regarding aiding and abetting culpability:
"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime. All participants in a crime are equally
responsible without regard to the extent of their participation. Mere association with the
principles who actually commit the crime or mere presence in the vicinity of the crime is
insufficient to establish guilt as an aider and abettor."
The language of the instruction conforms with K.S.A. 2012 Supp. 21-5210(a)
("A person is criminally responsible for a crime committed by another if such person,
acting with the mental culpability required for the commission thereof, advises, hires,
counsels or procures the other to commit the crime or intentionally aids the other in
committing the conduct constituting the crime.").
19
In State v. Llamas, 298 Kan. 246, 311 P.3d 399 (2013), this court reviewed an
aiding and abetting instruction based on PIK Crim. 3d 54.05—the predecessor to PIK
Crim. 4th 52.140. The instruction stated:
"'A person who, either before or during its commission, intentionally aids another
to commit a crime with the intent to promote or assist in its commission is criminally
responsible for the crime committed regardless of the extent of the Defendant's
participation, if any, in the actual commission of the crime.'" 298 Kan. at 258.
The district court denied the defendant's request in Llamas to add the following
language to the instruction:
"'[M]ere association with the principals who actually commit the crime or mere presence
in the vicinity of the crime is insufficient to establish guilt as an aider or abetter. To be
guilty of aiding and abetting in the commission of the crime the defendant must willfully
associate himself with the unlawful venture and willfully participate in it as he would
something he wishes to bring about.'" 298 Kan. at 258.
On appeal, the defendant argued that the district court erred in refusing to give the
additional language because the jury was left without direction regarding his defense
(similar to Potts' defense) that he was merely present at the crime scene and did not assist
an acquaintance with firing a gun at an occupied vehicle that resulted in a death. This
court acknowledged that though the "mere association or presence" language was a
correct statement of law, several of its prior decisions had concluded that the language of
PIK Crim. 3d 54.05 "'clearly informs the jury that intentional acts by a defendant are
necessary to sustain a conviction for aiding and abetting.'" 298 Kan. at 260. See, e.g.,
State v. Edwards, 291 Kan. 532, 552, 243 P.3d 683 (2010) (["This court has repeatedly
held that juries are presumed to intuit from the word 'intentionally' in the patterned
20
instruction that proof of mere association or presence would be insufficient to convict.").
Consequently, the court concluded that though "[t]he better practice would be to include
the mere association or presence language when a defense is based on the theory that a
defendant was merely present and did not actively aid and abet a crime," the district court
did not err by failing to do so. Llamas, 298 Kan. 261-62; see also State v. Littlejohn, 298
Kan. 632, 650-51, 316 P.3d 136 (2014) (reaching same conclusion).
The instruction at issue in this case gave a more extensive description of criminal
liability based on aiding and abetting than the instruction at issue in Llamas. The first two
sentences of the aiding and abetting instruction given in this case are substantially similar
to the instruction at issue in Llamas—an instruction that the court determined "'clearly
informs the jury that intentional acts by a defendant are necessary to sustain a conviction
for aiding and abetting.'" 298 Kan. at 260. The requirement that the defendant act
intentionally in order to find him or her criminally responsible for a crime committed by
another is reinforced by the last sentence of the instruction at issue here: "Mere
association with the principals who actually commit the crime or mere presence in the
vicinity of the crime is insufficient to establish guilt as an aider or abettor."
The instruction as a whole clearly conveyed to the jury that a defendant, in order
to be found guilty for a crime committed by another, must have intentionally aided in the
commission of the crime. We conclude that it was not legally necessary for the district
court to add the definition of intentional conduct sua sponte to the instruction it gave the
jury on aiding and abetting liability. Based on the caselaw cited above, doing so would
have been redundant.
CUMULATIVE ERROR
Potts next argues that cumulative error cost him a fair trial. Cumulative error,
considered collectively, may be so great as to require reversal of a defendant's conviction.
21
The test is whether the totality of the circumstances substantially prejudiced the
defendant and denied him or her a fair trial. No prejudicial error may be found under the
cumulative error doctrine if the evidence against the defendant is overwhelming. State v.
Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007). Moreover, this doctrine does not
apply if no error or only one error supports reversal. See State v. Dixon, 289 Kan. 46, 71,
209 P.3d 675 (2009).
Based on the above analysis, none of the trial issues raised on appeal constitute
error. Therefore, the court should not apply the cumulative error doctrine here
PROSECUTION AS AN ADULT
Potts also argues that when the district court made factual findings supporting its
decision to authorize adult prosecution, it increased his potential punishment in violation
of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Potts acknowledges that he failed to raise this issue before the district court, but he notes
that this court has addressed Apprendi issues for the first time on appeal. See e.g., State v.
Gould, 271 Kan. 394, 404-05, 23 P.3d 801 (2001); cf. State v. Perez, 292 Kan. 785, 261
P.3d 532 (2012) (refusing to address adult-certification Apprendi argument because
defendant failed to comply with Supreme Court Rule 6.02 [2015 Kan. Ct. R. Annot. 41]
by not explaining why issue should be considered for the first time on appeal). Whether
the district court violated Apprendi by making factual findings authorizing Potts to stand
trial as an adult raises a question of law subject to unlimited review. See State v. Tyler,
286 Kan. 1087, 191 P.3d 306 (2008).
Here, the district court, not a jury, found that the State could prosecute Potts as an
adult under K.S.A. 2012 Supp. 38-2347. Potts contends that if he had been prosecuted as
a juvenile, he would have faced approximately 8 years in a juvenile correctional facility,
compared to the controlling hard-20 life sentence he received as the result of being tried
22
as an adult. Because the district court's approval of adult prosecution increased the
maximum punishment Potts faced, and the determination was not tried before a jury and
proven beyond a reasonable doubt, Potts claims his rights under the Sixth and Fourteenth
Amendments to the United States Constitution—as interpreted by Apprendi and its
progeny—were violated.
Potts concedes that this court has rejected this argument in several cases. See
Tyler, 286 Kan. at 1096; State v. Mays, 277 Kan. 359, 367-68, 85 P.3d 1208 (2004); State
v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003); State v. Jones, 273 Kan. 756, 47 P.3d
783, cert. denied 537 U.S. 980 (2002). In Jones, we held that while Apprendi applies to
the sentencing phase of a criminal proceeding after guilt has been determined, the case
does not apply to an initial adult certification hearing because such a hearing addresses a
"jurisdictional matter" meant to determine which court (juvenile or adult) will resolve the
case. Thus Apprendi's requirement of a jury determination is not required for a juvenile to
be tried as an adult. 273 Kan. at 774-78.
This court affirmed Jones' reasoning in Tyler. Tyler argued that his Apprendi
rights were violated when the district court made the factual findings necessary to allow
his prosecution as an adult rather than as a juvenile. The Tyler court rejected this
argument, reasoning that Apprendi forbids only the imposition of a sentence that exceeds
the statutory maximum permitted by the facts required by the jury's finding of guilt. In
other words, Apprendi still applies after the certification procedure sends a juvenile to
adult court. Tyler, 286 Kan. at 1095-96.
Notably, "[t]he vast majority of courts have held that a judge's decision whether a
juvenile should be prosecuted as an adult is a pre-adjudicatory question of jurisdiction
and therefore does not implicate the Apprendi case line." Jenny E. Carroll, Rethinking the
Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult
23
Punishment, and Adult Process, 61 Hastings L.J. 175, 201 (2009). See, e.g., United States
v. Miguel, 338 F.3d 995, 1004 (9th Cir. 2003) ("Apprendi does not require that a jury find
the facts that allow the transfer to district court. The transfer proceeding establishes the
district court's jurisdiction over a defendant."); United States v. Juvenile, 228 F.3d 987,
990 (9th Cir. 2000) (holding that the transfer of a juvenile to an adult court "merely
establishes a 'basis for district court jurisdiction'"); State v. Kalmakoff, 122 P.3d 224, 227
n.29 (Alaska App. 2005) (finding that the weight of authority indicates that transfer
Fproceedings are mere determinations of the court's jurisdiction and therefore Apprendi
protections do not apply); State v. Rodriguez, 205 Ariz. 392, 401 71 P.3d 919, 928 (Ariz.
App. 2003) (holding that the state juvenile-transfer statute in question is not a sentence-
enhancement scheme because "it does not subject [a] juvenile to enhanced punishment, it
subjects [a] juvenile to the adult criminal justice system"); People v. Beltran, 327 Ill.
App. 3d 685, 690-91, 765 N.E.2d 1071, 1076 (2002) (holding that transfer establishes
jurisdiction and therefore is "dispositional, not adjudicatory"); Caldwell v. Com., 133
S.W.3d 445, 452-53 (Ky. 2004) (adopting the argument that juvenile transfer is merely
jurisdictional); State v. Lopez, 196 S.W.3d 872, 875-76 (Tex. App. 2006) (holding that a
decision allowing "prosecution of a juvenile as an adult" only "involves the determination
of which system will be appropriate for a juvenile offender").
Potts claims that Tyler was wrongly decided because the court focused on the
jurisdictional nature of authorizing the State to prosecute a juvenile as an adult rather than
the effect adult certification has on a juvenile, i.e., subjecting him or her to the possibility
of increased punishment. However, Potts' argument fails to acknowledge that the adult
certification procedure takes place before a juvenile has been found guilty of committing
any crime. In Apprendi, the Supreme Court held: "Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S.
at 490. But the Court cautioned that "the relevant inquiry is one not of form, but of
24
effect—does the required finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?" (Emphasis added.) 530 U.S. at 494. Since
Apprendi, the Court has never indicated or hinted that Apprendi would apply to a factual
determination made at a pretrial proceeding. Cf. Hurst v. Florida, 577 U.S. __, 136 S. Ct.
616, 621-22, 193 L. Ed. 2d 504 (2016) (concluding that Florida's capital sentencing
scheme violates the Sixth Amendment because judicial fact finding exposes defendant to
greater punishment [death] than the punishment authorized by jury's guilty verdict [life
sentence]); Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d
314 (2013) (concluding that defendant's Sixth Amendment rights were violated when a
judge made factual finding that increased defendant's mandatory minimum sentence
resulting from jury's guilty verdict).
Based on the above, we affirm our holding in Tyler and conclude that Potts' Sixth
Amendment rights were not violated when the district court made factual findings
authorizing the State to prosecute Potts as an adult.
POSTRELEASE SUPERVISION
Finally, Potts argues that the district court erred by noting within the journal entry
of judgment that Potts was subjected to lifetime postrelease supervision for all of his
convictions. He argues that this court should order the preparation of a nunc pro tunc or
amended journal entry of judgment to reflect that he is subject to lifetime parole for the
felony-murder conviction and 36 months of postrelease supervision for the criminal
discharge of a firearm and burglary convictions. The State concedes this issue.
A criminal sentence is effective when pronounced from the bench at the
sentencing hearing; it does not derive its effectiveness from the journal entry. Therefore,
a journal entry that imposes a sentence that varies from the sentence pronounced from the
bench is erroneous and must be corrected to reflect the actual sentence imposed. State v.
25
Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012); see also State v. Mebane, 278 Kan. 131,
136, 91 P.3d 1175 (2004) (explaining nunc pro tunc orders are appropriate to correct
clerical errors arising from oversight or omission). A journal entry of judgment may be
corrected "at any time" by a nunc pro tunc order. See K.S.A. 22-3504(2); Mason, 294
Kan. at 677.
Under K.S.A. 2012 Supp. 22-3717(b)(2), a person convicted of felony murder is
"eligible for parole after serving 20 years of confinement without deduction of any good
time credits." Under subsection (d)(1)(A), a person convicted of a nondrug severity level
3 crime (such as criminal discharge of a firearm resulting in great bodily harm, see
K.S.A. 2012 Supp. 21-6308[b][1][B]) "must serve 36 months, plus the amount of good
time and program credit earned and retained . . . on postrelease supervision." In addition,
subsection (d)(1)(F) of K.S.A. 2012 Supp. 22-3717 states:
"In cases where sentences for crimes from more than one severity level have
been imposed, the offender shall serve the longest period of postrelease supervision as
provided by this section available for any crime upon which sentence was imposed
irrespective of the severity level of the crime. Supervision periods will not aggregate."
Thus the controlling term of postrelease supervision applicable to Potts' criminal
discharge of a weapon and burglary convictions is 36 months. See K.S.A. 2012 Supp.
21-5807(c)(1)(C) (vehicular burglary is a nondrug severity level 9 crime).
At sentencing, the district court judge stated that for the felony-murder conviction,
he was sentencing Potts to "a term of life without eligibility for parole until you have
served twenty years." But shortly after announcing this sentence, the judge stated that
"[p]ost-release will be life." With regard to the criminal discharge of a firearm conviction,
the district judge indicated that he was imposing lifetime parole. For the burglary
26
conviction, the judge did not announce a term of postrelease supervision. The
subsequently filed journal entry of judgment indicates that the judge imposed lifetime
postrelease supervision for all three convictions.
It appears that the journal entry of judgment reflects, in part, the sentence that the
district court pronounced from the bench at sentencing; thus it cannot be corrected by a
nunc pro tunc order. State v. Vanwey, 262 Kan. 524, Syl. ¶ 2, 941 P.2d 365 (1997) ("A
nunc pro tunc order under K.S.A. 22-3504[2] may only be used to correct actual clerical
errors or errors arising from oversight or omission."). Instead of issuing a nunc pro tunc
order, the appropriate remedy is to vacate the lifetime postrelease supervision period that
the district court imposed and remand the case for resentencing with instructions that the
district court impose lifetime parole for the felony-murder conviction and 36 months of
postrelease supervision for the criminal discharge of a firearm and burglary convictions.
See K.S.A. 22-3504(1) (an illegal sentence can be corrected at any time); State v.
LaBelle, 290 Kan. 529, Syl. ¶ 1, 231 P.3d 1065 (2010) ("An illegal sentence is a sentence
. . . which does not conform to the statutory provision, either in character or the term of
the punishment authorized . . . .").
CONCLUSION
We affirm Potts' convictions and the accompanying prison sentences. But we
vacate the lifetime postrelease supervision term that the district court imposed and
remand with directions that the district court impose lifetime parole for the felony-murder
conviction and 36 months of postrelease supervision for the criminal discharge of a
firearm and burglary convictions.
27