State v. Green ( 2018 )

No. 116,635
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
AARON JEROME GREEN,
Appellant.
SYLLABUS BY THE COURT
1.
Where the party challenging a jury instruction on appeal failed to object below, the
clearly erroneous standard of review applies. The clearly erroneous standard is a two-step
review that requires an appellate court to first determine whether the instructions were
legally and factually appropriate, employing an unlimited review of the entire record. If
error is found, the defendant must firmly convince the court the jury would have reached
a different result without the error.
2.
A jury instruction is legally appropriate if it fairly and accurately states the
applicable law.
3.
The use of PIK instructions, while not mandatory, is strongly recommended. The
pattern instructions have been developed by a knowledgeable committee to bring
accuracy, clarity, and uniformity to jury instructions. A jury instruction may depart from
the PIK instruction where legally appropriate.
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4.
The phrases "with a deadly weapon" and "in any manner whereby great bodily
harm, disfigurement or death can be inflicted" as contained in PIK Crim. 4th 54.310 are
synonymous.
5.
The aggravated form of simple battery contained in K.S.A. 2017 Supp. 21-
5413(a)(2) is aggravated battery contained in K.S.A. 2017 Supp. 21-5413(b)(1)(C).
6.
A jury instruction for aggravated battery under K.S.A. 2017 Supp. 21-
5413(b)(1)(C) is legally appropriate when it states, in relevant part, that the defendant
knowingly caused physical contact with the victim in a rude, insulting, or angry manner
and in any manner whereby great bodily harm, disfigurement, or death can be inflicted.
7.
A lesser included offense is, in relevant part, a lesser degree of the same crime or a
crime where all elements of the lesser crime are identical to some of the elements of the
crime charged. A lesser included offense jury instruction must be given when there is
some evidence, emanating from whatever source and proffered by whichever party, that
would reasonably justify a conviction of some lesser included crime. To determine
whether a lesser included offense jury instruction should have been given, an appellate
court views the evidence in a light most favorable to the defendant. A district court does
not err in failing to give a lesser included offense jury instruction on a crime which is
unsupported by the evidence in that particular case.
8.
A court's duty to instruct on a lesser included offense is not foreclosed or excused
just because the lesser included offense may be inconsistent with the defendant's theory
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of defense. Moreover, the evidence which would support a conviction on a lesser
included offense is not restricted to that which was proffered by the defense; it can
include evidence presented by the State as well.
9.
Reckless aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(2)(B) is a lesser
included offense of knowing aggravated battery under K.S.A. 2017 Supp. 21-
5413(b)(1)(C) because it is a lesser degree of the same crime.
10.
Generally, a defendant cannot complain on appeal about a claimed error that was
invited. The invited error doctrine applies only when the party fails to object and invites
the error, unless the error is structural. The invited error doctrine applies when a
defendant actively pursues what is later argued to be error, such as when the defendant
submits a proposed jury instruction.
11.
The burden of proof jury instruction given by the district court, which mirrors the
language contained in PIK Crim. 4th 51.010, was legally appropriate.
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed May 18, 2018.
Affirmed.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.
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Before BRUNS, P.J., PIERRON and POWELL, JJ.
POWELL, J.: Aaron Jerome Green was convicted by a jury of his peers of one
count of aggravated battery, two counts of simple battery, one count of criminal damage
to property, and one count of violation of a protective order. Green now appeals, arguing
the district court improperly instructed the jury in three instances, all of which require
reversal of his convictions. Green also claims the district court improperly sentenced him
by including in his criminal history prior convictions which had not been proven to the
jury beyond a reasonable doubt. For reasons more fully explained below, we disagree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Cherie Adkins was dating Green but had a no-contact order against him. Despite
the no-contact order, Adkins invited Green to have dinner with her and her cousin
William Joseph (B.J.) Russell at her home in Salina, Kansas, on September 19, 2015.
Around 5 or 6 p.m., Russell and Adkins began drinking while Adkins prepared dinner.
Adkins testified Green came over to her house later and he drank some beers or whiskey
that night. Russell testified that he was drinking whiskey pretty heavily and estimated he
had had about a half liter of whiskey by the time Green arrived about two hours later.
Russell admitted that due to his intoxication he did not remember a lot about what
happened that night.
After dinner, the three went over to a friend's house. During the visit, Adkins
promised the friend's niece that she would bring her some toys she had at her house. The
group did not stay at the friend's house very long because Green got into an argument
with the friend. Green appeared irritated when they left and then became more irritated
after they briefly stopped at a second friend's home. At the second stop, only Green went
inside; Adkins and Russell remained in her car. Russell was pretty inebriated and may
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have passed out. Russell stated that he did not go into the first home and that he slept
through most, if not all, of the car ride.
After the second stop, the group returned to Adkins' house. Adkins and Green
started arguing, and Russell woke up and tried to get the two to calm down. Russell and
Green then went into Adkins' bedroom to talk. At that point, Adkins left to take the toys
to her friend's niece and returned home about five minutes later. When Adkins returned
home, Green was outside the front of her house. After Adkins got out of her car, Green
began yelling at her because Russell had brought a knife into the bedroom where they
were talking. Green pinned Adkins against the car, choked her to the point that she
almost passed out, and caused her to fall. Green then pulled Adkins up by the back of her
shirt and led her into the house and down a hallway leading to the bedrooms. Green kept
his hands on Adkins' back and said he wanted her to tell Russell to leave.
As the two walked down the hallway, Green pushed Adkins into a bedroom door
or doorjamb. The impact caused a cut above her right eyebrow which began to bleed.
Green then allowed Adkins to wash the blood off in the bathroom. After Adkins washed
her face, Green pushed her into the bedroom where Russell was sleeping. Adkins saw a
knife on the bedroom floor, woke up Russell, asked him about the knife, and told him he
had to leave. Russell seemed disoriented but was able to stand up on his own. The three
then left the bedroom: Russell first, then Adkins, and then Green. Russell and Green were
arguing back and forth about the cut on Adkins' face and the fact that Russell had brought
a knife into the bedroom. Adkins put herself between the two men, with a hand on each
man's chest, trying to keep them apart. At one point, Adkins told Russell to get into her
car, so he left the house. She told Green she would take Russell home and then come
back to talk with him about what had happened.
Before Adkins could take Russell home, however, Russell came back into the
house with a broomstick-like stick, and Green and Russell again started to argue. Adkins
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testified that Russell merely held the stick in his hands and did not swing the stick during
the altercation. Russell testified that he went back into the house with the stick because he
could hear Adkins and Green arguing. Russell stated the altercation escalated after he saw
the blood on Adkins and he realized that something serious had happened between
Adkins and Green.
During the second altercation, the three moved from the hallway to the living and
dining room area. At one point, Green pushed Adkins away and she landed on the couch.
According to Adkins, Green went after Russell holding a bottle in one hand and a knife in
the other. Adkins did not know when Green picked up the knife. Adkins testified that
Green picked up Russell and threw him into the wall, punched Russell with his fist, and
then hit him across the face with the bottle. The impact of the bottle knocked Russell out
and caused him to bleed. On cross-examination, Adkins confirmed that she knew Green
hit Russell with the bottle but was not sure whether Green had hit Russell with his left
hand first. Adkins had to pull Green off Russell and told him to stop. Green walked out a
few moments later but then returned and shouted at Russell, "Why shouldn't I?" while
holding the knife in his hand. Green then stabbed the wall with the knife, breaking the
knife and leaving about a 2-inch hole in the wall.
Green then walked outside, and Adkins told Russell to call 911 because her phone
had been broken during the altercation. Adkins heard Russell ask for help from 911, but
he must have disconnected or hung up because she heard the 911 dispatcher call the
phone back a short time later. Green came back into the house, and Adkins and Green
started talking. Adkins could tell Green was still angry, and Green kept looking out the
front door. At some point Russell left the house through the back door. Adkins testified
that she thought Green realized that someone had called 911 because the police started
shining lights on the houses on Adkins' street. Green then left through the back door.
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Russell admitted that he was intoxicated and had trouble remembering the night of
the incident, but he testified that he did not point the knife or strike at Green and that he
initially grabbed the knife to protect himself. Russell acknowledged that he was
argumentative with Green but testified that he did not lunge towards Green. Russell
stated that at some point during the night Green hit him with the bottle of whiskey and
the next thing he knew he was on the ground. Russell said he lost consciousness, but he
came to lying on his stomach and saw a pool of blood near his face. After he came to—he
only remembered bits and pieces—he could hear Adkins and Green fighting and Adkins
pleading with Green not to hit Russell again. Russell remembered calling 911 and then
leaving the house through the back door.
Officer Kyle Tonniges of the Salina Police Department was sent to investigate a
911 hang up in the area of Fourth Street. Tonniges was provided with a few different
addresses from dispatch, but when he got to Fourth Street he decided to approach the
only house with its lights on and the front door open. Upon approaching the front of the
house, Tonniges observed a black male, later identified as Green, running through the
backyard toward a nearby high school. Tonniges went to the front door of the house and
saw Adkins through the storm door. He observed her sitting on a couch and noticed that
she had blood on her face and shirt. Tonniges testified that when he spoke to Adkins he
believed that she had been drinking based on her bloodshot, watery eyes and the odor of
alcohol.
Adkins testified that she did not remember a lot of what she said to Tonniges and
described herself as shocked and devastated during the conversation. Tonniges video
recorded the statement Adkins provided to police that night. Specifically, Adkins told
Tonniges that the altercation between Green and Russell started when Russell walked
into the home with the stick in a combative manner. Adkins also stated that Green used a
bottle to hit Russell in the face. Finally, Adkins provided a written statement to police
that night that Green hit Russell with either a bottle or his fist. Tonniges collected a
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broken knife that was lying on Adkins' living room floor as evidence and described the
knife as a kitchen knife about 10 inches in length with the blade broken off at the handle.
Tonniges stated that the knife was about 5 feet from a hole in the living room wall and
next to where Adkins described Russell as lying.
Adkins testified that she tried to look for Russell after the police and EMS left her
house early the next morning and then went to a friend's house. Russell testified that he
returned to Adkins' house in the early morning hours and found the door either broken or
unlocked. He did not believe anyone else was in the house, and he went to sleep on the
couch. Later that morning, Adkins contacted the police to check on her home because she
was scared Green was there. When Adkins got to her house, she saw police officers in her
front yard. She allowed the officers into her home, and they found that Green was inside.
Adkins only went inside the home once the officers removed Green.
The State admitted a video recording from Officer Christopher Venables' body
camera showing his interactions with Green, Adkins, and Russell on September 20, 2015.
In the video, Adkins opens the front door to let the officers inside, and Venables requests
that Green come to the front door. Venables then walks into the house and finds Green in
the hallway leading to the bedrooms. Venables handcuffs Green in the front room, and
Green tells Russell—who is lying on a couch in that room—to tell the police that he tried
to stab him the night before. Green told the police that he had come to the house to get his
stuff but did not come to the door that morning because he had just woken up. The video
then shows Venables and Green talking outside the house on the front lawn, and Green
tells the officers that he came over that morning to get his stuff. He said that he did not
initially come to the front door because he was putting his clothes on. Venables asks
Green how Adkins received the injury to her eye, and Green stated that she must have
gotten it when she tried to stop Russell and him from fighting.
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Venables testified at trial that he understood Green's statement about why he went
over to Adkins' house the night before as Green went to pick up some of his things and
Russell and Adkins attacked him. Venables stated that Green did not provide any further
details other than Russell pulled out a knife. In the video, Russell states that Green came
over the night before and they were all drinking, and then Green came swinging at him.
Russell claims he grabbed a knife, not to stab Green but to protect himself and his cousin.
Officer Matthew Steffen was one of the officers who arrived at Adkins' home the
following morning. Steffen spoke with Russell and was worried that Russell had a head
injury based on the swelling to the left side of his face, but Russell refused medical
treatment. A few days later, Russell went to the emergency room because he was having
trouble eating and had numbness and pain in his jaw. Dr. Venkata Katasani treated
Russell that day and testified that Russell said he was hit several times in the face with a
fist or a bottle and that he lost consciousness from the injury. Dr. Katasani also testified
that Russell told him he was suffering from headaches, nausea, and pain on the left side
of his face and neck. Russell rated his pain as 9 out of 10. Dr. Katasani ordered CT scans
and x-rays of Russell's head, facial bones, and neck area. Dr. Patrik Leonard, a
radiologist, reviewed the results of Russell's scans and determined that he had recently
suffered four fractures to his face, and that such injuries required a fair amount of force.
Dr. Leonard testified that a fist could cause such an injury.
Based on Dr. Leonard's assessment, Dr. Katasani referred Russell to Dr. David
Hendrick—an ear, nose, and throat doctor—who determined that Russell did not need
surgery but advised him to stay on a soft-foods diet for two weeks. Russell was
prescribed some pain medication and renewed his pain medication prescriptions at a later
date because he was still feeling significant pain. In fact, at the trial held in May 2016,
Russell testified he still had some pain when he chews food and that he now tends to
chew on the other side of his mouth. Russell also testified that his eye socket does not
9
look the same as it did before the incident and that he still feels numbness in his jaw and
eye.
Following the trial, the State amended its complaint and charged Green with one
count each of aggravated battery against Adkins and Russell in violation of K.S.A. 2015
Supp. 21-5413(b)(1)(C); one count of criminal damage to property in violation of K.S.A.
2015 Supp. 21-5813(a)(1), (c)(3); one count of violation of a protective order in violation
of K.S.A. 2015 Supp. 21-5924(a)(4); and one count of simple battery against Adkins in
violation of K.S.A. 2015 Supp. 21-5413(a)(1).
At the close of the evidence, Green requested and the district court permitted a
self-defense jury instruction over the State's objection. The district court instructed the
jury on each charge and provided a jury instruction on the lesser included offense of
simple battery for the two counts of knowing aggravated battery against Adkins and
Russell. Green did not request a lesser included offense jury instruction for reckless
aggravated battery.
The jury found Green guilty of one count of aggravated battery against Russell;
two counts of simple battery against Adkins; one count of criminal damage to property;
and one count of a violation of a protective order. The district court sentenced Green to
32 months in prison.
Green timely appeals.
DID THE DISTRICT COURT ERRONEOUSLY INSTRUCT THE JURY?
Green first argues the district court committed three jury instruction errors by (1)
providing an erroneous jury instruction on knowing aggravated battery; (2) not
instructing on the lesser included offense of reckless aggravated battery; and (3)
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providing a burden of proof jury instruction that did not instruct the jury on its power of
nullification.
We review jury instructional errors under a four-step approach:
"'"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)."' [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-
57, 373 P.3d 781 (2016).
A. Did the district court err in instructing the jury on knowing aggravated battery?
Green first argues the district court erroneously instructed the jury on the charge of
knowing aggravated battery against Russell. Specifically, Green complains the jury
instruction was not legally appropriate as it did not clearly state that the physical contact
had to be done "in any manner whereby great bodily harm, disfigurement or death can be
inflicted." The State counters that Green did not object to the jury instruction.
Because the State is correct, we review Green's allegation of error under the
clearly erroneous standard. See K.S.A. 2017 Supp. 22-3414(3); State v. Brown, 306 Kan.
1145, 1164, 401 P.3d 611 (2017). The clearly erroneous standard is a two-step review
that requires us to "first determine whether the instructions were legally and factually
appropriate, employing an unlimited review of the entire record. If error is found, 'the
11
defendant must firmly convince the court the jury would have reached a different result
without the error.' [Citations omitted.]" 306 Kan. at 1164.
Green does not contest that the jury instruction on knowing aggravated battery was
factually appropriate. Therefore, we limit our examination to its legal appropriateness.
For a jury instruction to be legally appropriate, it "'must always fairly and accurately state
the applicable law.'" State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016), cert.
denied 137 S. Ct. 1381 (2017). As evaluating Green's argument requires us to interpret
K.S.A. 2017 Supp. 21-5413(b)(1)(C), the version of knowing aggravated battery under
which Green was charged, our review is unlimited. See State v. Collins, 303 Kan. 472,
473-74, 362 P.3d 1098 (2015).
"'The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. [Citation omitted.]'" State v. Jordan,
303 Kan. 1017, 1019, 370 P.3d 417 (2016).
"'While criminal statutes are generally strictly construed against the State, . . . judicial
interpretation must be reasonable and sensible to effectuate the legislative design and the
true intent of the law.'
"'. . . When a statute is plain and unambiguous, an appellate court does not
speculate as to the legislative intent behind it and will not read into the statute something
not readily found in it.'" State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016).
"[W]hen construing statutes to determine legislative intent, appellate courts must
consider various provisions of an act in pari materia, with a view toward reconciling and
bringing the provisions into workable harmony if possible." State v. Keel, 302 Kan. 560,
573-74, 357 P.3d 251 (2015) (citing State v. Coman, 294 Kan. 84, 93, 273 P.3d 701
[2012]), cert. denied 136 S. Ct. 865 (2016).
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In order for the jury to find Green guilty of aggravated battery against Russell, the
State had to prove that Green "knowingly caused physical contact with [Russell] when
done in a rude, insulting or angry manner with a deadly weapon, or in any manner
whereby great bodily harm, disfigurement or death could be inflicted." See K.S.A. 2017
Supp. 21-5413(b)(1)(C). The pattern instruction for aggravated battery, PIK Crim. 4th
54.310 (2016 Supp.), lists the relevant elements of knowing aggravated battery as
follows:
"The defendant knowingly caused physical contact with insert name (in a rude,
insulting or angry manner with a deadly weapon) (in any manner whereby great bodily
harm, disfigurement or death can be inflicted)."
The written aggravated battery jury instruction given to the jury read:
"The defendant is charged in Count 2 with aggravated battery. The defendant
pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant knowingly caused physical contact with William Joseph Russell in a
rude, insulting or angry manner in any manner whereby great bodily harm, disfigurement or
death can be inflicted." (Emphasis added.)
When reading the jury instructions to the jury, the district court read the instruction as:
"The defendant is charged in Count 2 with aggravated battery. The defendant
pleads not guilty. To establish this charge, each of the following claims must be proved:
One, the defendant knowingly caused physical contact with William Joseph Russell in a
rude, insulting or angry manner and any manner whereby great bodily harm,
disfigurement or death can be inflicted." (Emphasis added.)
13
Green specifically argues the district court improperly combined the options "rude,
insulting or angry manner with a deadly weapon" with "in any manner whereby great
bodily harm, disfigurement or death can be inflicted" by leaving out the phrase "with a
deadly weapon," thus making the jury instruction legally inappropriate. At first blush,
Green's argument appears to have merit as his argument tracks with the wording of PIK
Crim. 4th 54.310. While district courts are not required to use PIK instructions, our
Supreme Court "strongly recommend[s] the use of PIK instructions [for] accuracy,
clarity, and uniformity [of] jury instructions." State v. Barber, 302 Kan. 367, 377-78, 353
P.3d 1108 (2015).
The State counters, relying upon State v. Ultreras, 296 Kan. 828, 295 P.3d 1020
(2013), that the district court's knowing aggravated battery jury instruction was legally
appropriate despite its exclusion of the phrase "with a deadly weapon." In Ultreras, the
defendant argued, in relevant part, that K.S.A. 21-3414(a)(2)(B) (now codified as K.S.A.
2017 Supp. 21-5413[b][2][B])—reckless aggravated battery—created an alternative
means issue. The statute provided that reckless aggravated battery is "recklessly causing
bodily harm to [the victim] with a deadly weapon, or in any manner whereby great bodily
harm, disfigurement, or death could be inflicted." 296 Kan. at 853. Ultreras argued on
appeal that "these circumstances state two alternatives—one through the phrase 'with a
deadly weapon' and a second through the phrase 'in any manner whereby great bodily
harm, disfigurement or death can be inflicted.'" 296 Kan. at 853.
The Ultreras court rejected his argument:
"The initial appeal of this argument evaporates in light of the fact that the phrase
'causing bodily harm to another person with a deadly weapon' is synonymous with the
phrase 'causing bodily harm to another person . . . in any manner whereby great bodily
harm, disfigurement or death can be inflicted.' The equivalency of the two phrases is
revealed in the manner in which this court has defined 'deadly weapon.' For example, in
State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985), superseded by statute on other
14
grounds as stated in State v. Borthwick, 255 Kan. 899, 916, 880 P.2d 1261 (1994), this
court, in the context of an aggravated battery case, defined a deadly weapon as 'an
instrument which, from the manner in which it is used, is calculated or likely to produce
death or serious bodily injury.' In other words, a deadly weapon is an instrument that can
inflict death or great bodily harm, which includes disfigurement. Thus, the phrase 'with a
deadly weapon' describes a factual circumstance that proves bodily harm was caused in a
'manner whereby great bodily harm, disfigurement or death can be inflicted' and, as such,
is an option within a means rather than an alternative means. [Citation omitted.]" 296
Kan. at 853-54.
We agree with the State that Ultreras is applicable here. Consistent with Ultreras,
the pattern instruction for reckless aggravated battery charged in Ultreras (K.S.A. 2017
Supp. 21-5413[b][2][B]) properly groups the phrases: "The defendant recklessly caused
bodily harm to insert name (with a deadly weapon) (in any manner whereby great bodily
harm, disfigurement or death can be inflicted)" because those phrases are synonymous
with each other. PIK Crim. 4th 54.310.
We suspect the confusion arises in how PIK Crim. 4th 54.310 phrases the
elements of the particular version of knowing aggravated battery charged in this case. In
our view, the pattern instruction that corresponds to K.S.A. 2017 Supp. 21-5413(b)(1)(C)
incorrectly groups the phrase "with a deadly weapon" with the prior phrase "in a rude,
insulting or angry manner." The pattern instruction reads: "The defendant knowingly
caused physical contact with insert name (in a rude, insulting or angry manner with a
deadly weapon) (in any manner whereby great bodily harm, disfigurement or death can
be inflicted)." PIK Crim. 4th 54.310. A comparison with simple battery helps illustrate
the point.
One version of simple battery requires that the defendant knowingly caused
physical contact with another person in a rude, insulting, or angry manner. See K.S.A.
2017 Supp. 21-5413(a)(2). The corresponding PIK instructs: "The defendant knowingly
15
caused physical contact with insert name in a rude, insulting or angry manner." PIK
Crim. 4th 54.300 (2016 Supp.). This type of battery becomes aggravated when it is
committed "with a deadly weapon" or "in any manner whereby great bodily harm,
disfigurement or death can be inflicted." K.S.A. 2017 Supp. 21-5413(b)(1)(C). This is the
same version of aggravated battery charged here. Ultreras instructs us that these phrases
are synonymous, which means they can be substituted for each other. Therefore, the
relevant pattern instruction for this type of aggravated battery should be phrased as
follows: "The defendant knowingly caused physical contact with insert name in a rude,
insulting or angry manner (with a deadly weapon) (and in any manner whereby great
bodily harm, disfigurement or death can be inflicted)." Note we have added, like the
district court did orally, the word "and" to the latter phrase to make it both grammatically
and legally correct. See State v. Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009) (PIK
modified to make instruction legally appropriate). Stated another way, the jury should be
instructed either one of two ways:
(1) "The defendant knowingly caused physical contact with insert name in a
rude, insulting or angry manner with a deadly weapon."
or
(2) "The defendant knowingly caused physical contact with insert name in a
rude, insulting or angry manner and in any manner whereby great bodily harm,
disfigurement or death can be inflicted."
A side-by-side comparison of the battery statute and the corresponding pattern
instructions may be helpful:
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K.S.A. 2017 Supp. 21-5413(a)
Battery is: PIK Crim. 4th 54.300
(1) knowingly or recklessly causing great The defendant (knowingly) (recklessly)
bodily harm to another person. caused bodily harm to insert name.
(2) knowingly causing physical contact The defendant knowingly caused physical
with another person when done in a rude, contact with insert name in a rude, insulting
insulting or angry manner. or angry manner.
K.S.A. 2017 Supp. 21-5413(b)
Aggravated battery is: PIK Crim. 4th 54.310
(1)(A) knowingly causing great bodily The defendant knowingly caused (great
harm to another person or disfigurement of bodily harm to) (disfigurement of) insert
another person. name.
(1)(B) knowingly causing bodily harm to The defendant knowingly caused bodily
another person with a deadly weapon, or in harm to insert name (with a deadly weapon)
any manner whereby great bodily harm, (in any manner whereby great bodily harm,
disfigurement or death can be inflicted. disfigurement or death can be inflicted).
(1)(C) knowingly causing physical contact The defendant knowingly caused physical
with another person when done in a rude, contact with insert name (in a rude,
insulting or angry manner with a deadly insulting or angry manner with a deadly
weapon, or in any manner whereby great weapon) (in any manner whereby great
bodily harm, disfigurement or death can be bodily harm, disfigurement or death can be
inflicted. inflicted).
(2)(A) recklessly causing great bodily The defendant recklessly caused (great
harm to another person or disfigurement of bodily harm to) (disfigurement of) insert
another person. name.
(2)(B) recklessly causing bodily harm to The defendant recklessly caused bodily
another person with a deadly weapon, or in harm to insert name (with a deadly weapon)
any manner whereby great bodily harm, (in any manner whereby great bodily harm,
disfigurement or death can be inflicted. disfigurement or death can be inflicted).
Of particular note is that the PIK Crim. 4th 54.310 instructions for knowing aggravated
battery under K.S.A. 2017 Supp. 21-5413(b)(1)(B) and reckless aggravated battery under
K.S.A. 2017 Supp. 21-5413(b)(2)(B) also groups the phrases "with a deadly weapon" and
"in any manner whereby great bodily harm, disfigurement or death can be inflicted"
similarly as we have proposed.
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Accordingly, the PIK Committee should modify PIK Crim. 4th 54.310 so the
instruction matches the definition of knowing aggravated battery under K.S.A. 2017
Supp. 21-5413(b)(1)(C). The instruction should read:
"The defendant is charged with aggravated battery. The defendant pleads not
guilty.
"To establish this charge, each of the following claims must be proved:
....
1. The defendant knowingly caused physical contact with insert name in a
rude, insulting or angry manner (with a deadly weapon) (and in any manner whereby
great bodily harm, disfigurement or death can be inflicted).
....
2. This act occurred on or about the ___ day of __________, ____, in
_______ County, Kansas.
"[A 'deadly weapon' is an instrument which, from the manner in which it is used,
is calculated or likely to produce death or serious bodily injury.]"
Such wording also conforms the language of the pattern instruction to Ultreras and
harmonizes it with the pattern instructions for the other versions of knowing aggravated
battery, reckless aggravated battery, and simple battery.
When applying our analysis to the actual jury instruction given by the district
court, we find no error. While the district court did not precisely follow PIK Crim. 4th
54.310, the jury instruction nevertheless fairly and accurately stated the crime of
aggravated battery as contained in K.S.A. 21-5413(b)(1)(C). The phrase "with a deadly
weapon" did not need to be included as it is synonymous with the included phrase "in any
manner whereby great bodily harm, disfigurement or death can be inflicted." See
Ultreras, 296 Kan. at 853. The district court did not commit clear error by instructing the
jury on knowing aggravated battery as the jury instruction was legally appropriate.
18
B. Did the district court err in failing to instruct the jury on the lesser included
offense of reckless aggravated battery?
Next, Green argues that some evidence at trial supported a jury instruction on the
lesser included offense of reckless aggravated battery. But like the jury instruction on
knowing aggravated battery, Green did not request the jury instruction or object to the
district court's failure to include a jury instruction on reckless aggravated battery.
Accordingly, Green must show clear error in the district court's failure to so instruct. See
State v. Cameron, 300 Kan. 384, 389, 329 P.3d 1158, cert. denied 135 S. Ct. 728 (2014).
As previously stated, to show clear error, an instruction on reckless aggravated battery
had to be both legally and factually appropriate, and Green must firmly convince us that
the jury would have reached a different result without the error. See Brown, 306 Kan. at
1164.
1. Was a reckless aggravated battery jury instruction legally appropriate?
Green argues that reckless aggravated battery under K.S.A. 2017 Supp. 21-
5413(b)(2)(B), a severity level 8 person felony, is a lesser included offense of knowing
aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(1)(B), a severity level 7 person
felony, because only the degree of mental culpability differentiates the two crimes. The
State readily agrees that severity level 8 reckless aggravated battery is a lesser included
offense of severity level 7 knowing aggravated battery. While we agree that reckless
aggravated battery is a lesser included offense of knowing aggravated battery under
K.S.A. 2017 Supp. 21-5413(b)(1)(C), the crime charged, an explanation is required.
A lesser included crime is, in relevant part, "[a] lesser degree of the same crime"
or "a crime where all elements of the lesser crime are identical to some of the elements of
the crime charged[.]" K.S.A. 2017 Supp. 21-5109(b)(1), (2). A district court is required to
19
instruct on any lesser included crime when some evidence supports the crime. State v.
Gatlin, 292 Kan. 372, 376, 253 P.3d 357 (2011).
Distracting us from the core of Green's argument is his assertion that reckless
aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(2)(B) is a lesser included
offense of knowing aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(1)(B).
However, Green was charged with knowing aggravated battery contained in K.S.A. 2017
Supp. 21-5413(b)(1)(C). Summarized, there are three types of knowing aggravated
battery:
1) knowingly causing great bodily harm or disfigurement under K.S.A. 2017
Supp. (b)(1)(A);
2) knowingly causing bodily harm with a deadly weapon or in any manner
where great bodily harm, disfigurement, or death can be inflicted under K.S.A. 2017
Supp. 21-5413(b)(1)(B); and
3) knowingly causing physical contact when done in a rude, insulting, or angry
manner with a deadly weapon or in any manner whereby great bodily harm,
disfigurement, or death could be inflicted under K.S.A. 2017 Supp. 21-5413(b)(1)(C).
There are also two corresponding versions of reckless aggravated battery:
1) recklessly causing great bodily harm or disfigurement under K.S.A. 2017
Supp. 21-5413(b)(2)(A), and
2) recklessly causing bodily harm with a deadly weapon or in any manner
where great bodily harm, disfigurement, or death can be inflicted under K.S.A. 2017
Supp. 21-5413(b)(2)(B).
20
While Green claims that the bodily harm version of reckless aggravated battery is
a lesser included offense of the bodily harm version of knowing aggravated battery, what
Green is really asking us to find is that the bodily harm version of reckless aggravated
battery is also a lesser included offense for the physical contact version of knowing
aggravated battery. This is problematic because the elements are so dissimilar, contrary to
K.S.A. 2017 Supp. 21-5109(b)(2). The mens rea element—knowing versus reckless—
does not match. Compare K.S.A. 2017 Supp. 21-5413(b)(1)(C) (knowing aggravated
battery) with K.S.A. 2017 Supp. 21-5413(b)(2)(B) (reckless aggravated battery); see also
State v. Bernhardt, 304 Kan. 460, 474, 372 P.3d 1161 (2016) ("[R]eckless second-degree
murder is not a lesser included offense of intentional second-degree murder . . . [b]ecause
they have different mens rea requirements[.]"). Nor does part of the actus rea element
match, as the version of knowing aggravated battery with which Green was charged
merely requires, in part, physical contact, while the offense which Green claims is a
lesser included offense, reckless aggravated battery, requires, in part, bodily harm.
Compare K.S.A. 2017 Supp. 21-5413(b)(1)(C) (caused physical contact) with K.S.A.
2017 Supp. 21-5413(b)(2)(B) (caused bodily harm).
This notwithstanding, bodily harm reckless aggravated battery under K.S.A. 2017
Supp. 21-5413(b)(2)(B) qualifies as a lesser included offense of physical contact knowing
aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(1)(C) because it is a "lesser
degree of the same crime." See K.S.A. 2017 Supp. 21-5109(b)(1). Green was charged
with physical contact knowing aggravated battery, which is a severity level 7 person
felony, while bodily harm reckless aggravated battery is a severity level 8 person felony.
K.S.A. 2017 Supp. 21-5413(g)(2)(B); (g)(2)(D). Because a severity level 8 aggravated
battery is a lesser degree of the same crime as a severity level 7 aggravated battery, due to
the fact that the higher the severity level of the crime the lower the sentence, severity
level 8 reckless aggravated battery is a lesser included offense of severity level 7
knowing aggravated battery. See State v. McCarley, 287 Kan. 167, 177-78, 195 P.3d 230
(2008) (finding severity level 5 and 8 aggravated battery crimes are lesser degrees of
21
severity level 4 aggravated battery). Therefore, it would have been legally appropriate for
the district court to include such a lesser included jury instruction.
2. Was a reckless aggravated battery jury instruction factually appropriate?
To analyze whether the instruction was factually appropriate, we begin with
direction from K.S.A. 2017 Supp. 22-3414(3): "In cases where there is some evidence
which would reasonably justify a conviction of some lesser included crime as provided in
subsection (b) of K.S.A. 2017 Supp. 21-5109, and amendments thereto, the judge shall
instruct the jury as to the crime charged and any such lesser included crime." The Kansas
Supreme Court has held:
"[L]esser included offense instructions must be given when there is some
evidence, emanating from whatever source and proffered by whichever party, that would
reasonably justify a conviction of some lesser included crime. . . . To determine whether
a lesser included offense instruction should have been given, this court views the
evidence in a light most favorable to the defendant. [Citations omitted.]" State v.
Rodriguez, 295 Kan. 1146, 1152, 289 P.3d 85 (2012).
But a district court does not err in failing "to give a lesser included offense instruction on
a crime which is unsupported by the evidence in that particular case." State v. Plummer,
295 Kan. 156, 161, 283 P.3d 202 (2012).
Green first argues that some evidence supports the lesser included offense jury
instruction for reckless aggravated battery because under the statutory provision of
K.S.A. 2017 Supp. 21-5202(c), the same evidence that established a knowing mental
state also establishes "some evidence" of a reckless mental state. K.S.A. 2017 Supp. 21-
5202(c) states:
22
"Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged. If recklessness suffices to establish an element, that element also is
established if a person acts knowingly or intentionally. If acting knowingly suffices to
establish an element, that element also is established if a person acts intentionally."
(Emphasis added.)
But when viewing K.S.A. 2017 Supp. 21-5202 as a whole, subsection (a) states:
"[A] culpable mental state is an essential element of every crime defined by this code. A
culpable mental state may be established by proof that the conduct of the accused person
was committed 'intentionally,' 'knowingly' or 'recklessly.'" K.S.A. 2017 Supp. 21-5202(b)
provides that "[c]ulpable mental states are classified according to relative degrees, from
highest to lowest, as follows: (1) [i]ntentionally; (2) knowingly; (3) recklessly."
Additionally, the statute defines the mental states for knowingly and recklessly:
"(i) A person acts 'knowingly,' or 'with knowledge,' . . . when such person is aware
of the nature of such person's conduct or that the circumstances exist [and] when such
person is aware that such person's conduct is reasonably certain to cause the result. . . .
"(j) A person acts 'recklessly' or is 'reckless,' when such person consciously
disregards a substantial and unjustifiable risk that circumstances exist or that a result will
follow, and such disregard constitutes a gross deviation from the standard of care which a
reasonable person would exercise in the situation." K.S.A. 2017 Supp. 21-5202.
The plain language of the first sentence in K.S.A. 2017 Supp. 21-5202(c) states:
"Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged." (Emphasis added.) Thus, K.S.A. 2017 Supp. 21-5202(c) applies to
satisfy the proof of a culpability element of a crime charged against the defendant.
According to K.S.A. 2017 Supp. 21-5202(a)-(c), the State here satisfied the knowingly
element in the knowing aggravated battery charges by proving the defendant intentionally
committed the aggravated batteries.
23
One panel of this court has found that the culpability provision does not apply to
lesser included offenses under the plain language of the statute. In State v. Younger, No.
116,441, 2018 WL 911414 (Kan. App. 2018) (unpublished opinion), petition for rev. filed
March 19, 2018, the State charged Younger with intentional second-degree murder. The
jury was instructed on two lesser included offenses for voluntary manslaughter and
involuntary manslaughter. On appeal, Younger asserted that the district court erred in
failing to instruct the jury to consider the voluntary manslaughter charge at the same time
as the intentional second-degree murder charge, rather than sequentially as a lesser
included offense. Younger's argument relied, in part, on finding that the culpability
provision under K.S.A. 2016 Supp. 21-5202(c) applies to lesser included offenses. The
panel rejected this interpretation upon finding "the plain language of subsection (c)
indicates it only applies to crimes charged." 2018 WL 911414, at *19. Green's
interpretation of K.S.A. 2017 Supp. 21-5202(c) as applied to lesser included offenses also
would tend to cause any lesser included offense with a lower culpable mental state than
the crime charged to become factually appropriate regardless of whether the facts or the
evidence support the applicable mental state and despite the differences in the culpable
mental state definitions. Compare K.S.A. 2017 Supp. 21-5202(i) with (j). Therefore, we
reject Green's claim that evidence of knowing conduct also amounts to some evidence of
reckless conduct.
The State argues that the district court did not err in failing to instruct the jury on
the lesser included offense of reckless aggravated battery because Green asserted a claim
of self-defense. But "'[t]he court's duty to instruct on lesser included crimes is not
foreclosed or excused just because the lesser included crime may be inconsistent with the
defendant's theory of defense.' Simmons, 283 P.3d 212, Syl. ¶ 3." Rodriguez, 295 Kan. at
1152. Moreover, our Supreme Court has held "that the evidence which would support a
conviction on a lesser included crime is not restricted to that which was proffered by the
defense, but rather it can include evidence presented by the State, as well." State v.
Simmons, 295 Kan. 171, 176, 283 P.3d 212 (2012).
24
Green's additional argument in favor of a reckless aggravated battery jury
instruction is that his intoxication that night establishes some evidence that a jury could
reasonably find that his acts against Russell were reckless because he could not form a
knowing intent.
To justify a lesser included jury instruction on reckless aggravated battery under
K.S.A. 2017 Supp. 21-5413(b)(2)(B), there must be some evidence that Green committed
aggravated battery by "recklessly causing bodily harm to another person with a deadly
weapon, or in any manner whereby great bodily harm, disfigurement or death can be
inflicted." A person acts recklessly if that person "consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a result will follow, and such
disregard constitutes a gross deviation from the standard of care which a reasonable
person would exercise in the situation." K.S.A. 2017 Supp. 21-5202(j).
When viewing the evidence in the light most favorable to Green, there was little
evidence presented at trial establishing that Green's intoxication caused him to act
recklessly or prevented a knowing intent. Testimony from Russell and Adkins provided
that Green drank alcohol that night. This evidence does not necessarily support a finding
that Green's intoxication impacted his ability to form a knowing intent or to act
recklessly; rather, it is unclear how intoxicated Green was or whether his intoxication
affected his intent. Moreover, Green did not testify or put on evidence.
More importantly, the evidence shows instead that Green acted knowingly or
intentionally. The State had to prove that Green knowingly hit Russell or was "reasonably
certain" that his physical contact would result in great bodily harm, disfigurement, or
death. K.S.A. 2017 Supp. 21-5202(i); K.S.A. 2017 Supp. 21-5413(b)(1)(C). Here, Adkins
testified that before Green hit Russell, Green had led her from the outside of the house
into her bedroom in order for her to tell Russell to leave. After she complied, Green went
after Russell when Russell reentered the living room with a stick. Adkins' testimony and
25
prior statements indicate Green either hit Russell with his fist first and then hit Russell
with a bottle or Green only hit Russell with a bottle. Russell testified that he was hit with
a bottle of whiskey in the face and lost consciousness. Adkins testified that Green left but
then came back and went after Russell again when Russell was on the ground and
shouted something along the lines of, "Why shouldn't I?" Russell testified that he could
hear Adkins pleading with Green to stop after he was on the ground. This evidence does
not support a finding that Green acted recklessly.
However, we can consider whether Green's counsel's closing argument supports a
reckless aggravated battery jury instruction. See State v. Davis, No. 115,566, 2017 WL
3324693, at *4 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. ___
(February 26, 2018). In closing argument, defense counsel stated that the jury should
consider: (1) Russell's and Adkins' inconsistent statements; (2) Green's failure to deny
hitting Russell and Adkins and his assertion he hit them in self-defense; (3) the State's
failure to charge Green with aggravated battery with a deadly weapon; and (4) convicting
Green of committing simple battery. Notably, counsel did not argue or allude to Green's
level of intoxication as affecting his ability to form a knowing intent or causing him to act
in a reckless manner towards Russell. Defense counsel also did not argue that Green
merely acted recklessly, regardless of his intoxication. Instead, defense counsel argued
Green either committed the battery in self-defense or he committed simple battery.
In sum, when considering the evidence and closing arguments, the jury was left
with the options of finding that Green knowingly committed aggravated battery, acted in
self-defense, or committed simple battery. See 2017 WL 3324693, at *4; see also Horne,
2015 WL 6832956, at *6 ("Horne did not argue the theory of reckless conduct at trial.
The evidence left the jury with the following options—Horne shot Cargile intentionally
or the gun discharged accidentally."). Accordingly, a lesser included instruction on
reckless aggravated battery was not factually appropriate, and the district court did not err
in failing to give it.
26
Finally, even if we assume the district court erred in failing to give a lesser
included instruction on reckless aggravated battery, Green fails to firmly convince us that
the jury would have reached a different verdict had the instruction been given for the
reasons we have just outlined above. "'[W]hen a lesser included offense has been the
subject of an instruction, and the jury convicts of the greater offense, error resulting from
failure to give an instruction on another still lesser included offense is cured.'" State v.
Carter, 305 Kan. 139, 163, 380 P.3d 189 (2016). The district court instructed the jury on
the lesser included offense of simple battery, yet the jury found Green guilty as charged
on knowing aggravated battery. There was no clear error.
C. Did the district court err in giving a burden of proof jury instruction that did not
properly instruct the jury on its power of nullification?
Green next argues that the district court discouraged the jury from exercising its
power of nullification by using the PIK Crim. 4th 51.010 burden of proof jury instruction.
The State argues that Green invited any error because he proposed the burden of proof
jury instruction ultimately given by the district court.
"Generally, a defendant cannot complain on appeal about a claimed error that was
invited." State v. Sasser, 305 Kan. 1231, 1235, 391 P.3d 698 (2017). "The invited error
doctrine applies only when the party fails to object and invites the error, unless the error
is structural." State v. Logsdon, 304 Kan. 3, 31, 371 P.3d 836 (2016). Our Supreme Court
has stated that the doctrine almost certainly applies "when a defendant actively pursues
what is later argued to be error," such as when the defendant submits a proposed jury
instruction. Sasser, 305 Kan. at 1236. But see State v. Clay, 300 Kan. 401, 410, 329 P.3d
484 (2014) (finding error not invited if unclear from record who proposed jury
instruction). We find that any error in the burden of proof jury instruction was invited by
Green because he not only failed to object to the jury instruction, but he also submitted
the jury instruction which he now argues was erroneous.
27
Even if we assume that Green did not invite any error, "[a] party cannot claim
instructional error unless he or she either objects to the error or the error is determined to
be clearly erroneous." State v. Allen, 52 Kan. App. 2d 729, 733, 372 P.3d 432 (2016).
Because Green did not object to the burden of proof jury instruction, we may reverse only
if Green convinces us "'the jury would have reached a different result without the error.'
[Citation omitted.]" Brown, 306 Kan. at 1164.
Green does not contest whether the jury instruction was factually appropriate but
argues that the burden of proof jury instruction was legally inappropriate because it did
not properly advise the jury on its power of nullification. Kansas law has consistently
held that
"criminal defendants are not entitled to have the jury instructed on its inherent power of
nullification—the power to disregard the rules of law and evidence in order to acquit the
defendant based upon the jurors' sympathies, notions of right and wrong, or a desire to
send a message on some social issue." Allen, 52 Kan. App. 2d at 734.
"It is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the
courts to instruct the jury that it may ignore the rule of law, no matter how draconian it
might be." State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011).
In State v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014), however, the
Kansas Supreme Court found the following jury instruction amounted to error: "'If you do
not have a reasonable doubt from all the evidence that the State has proven murder in the
first degree on either or both theories, then you will enter a verdict of guilty.'" (Emphasis
added.) While the Smith-Parker court acknowledged it had "rejected a defense argument
that a criminal jury should be instructed on its inherent power of nullification, . . . the
district judge's instruction in this case went too far in the other direction. It essentially
forbade the jury from exercising its power of nullification. [Citations omitted.]" 301 Kan.
28
at 164. The Supreme Court determined that the word "will" in a burden of proof jury
instruction essentially directed a verdict for the State, and a judge "cannot compel a jury
to convict, even if it finds all elements proved beyond a reasonable doubt." 301 Kan. at
164.
The jury instruction that Green challenges as error mirrors the language in PIK
Crim. 4th 51.010 and reads as follows:
"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty unless you are
convinced from the evidence that he is guilty.
"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of each of the claims to be proved by the State, you
should find the defendant guilty." (Emphasis added.)
Specifically, Green argues that the use of the word "should" in instructing the jury
directs or compels the jury to enter a guilty verdict. Green argues that because "should" is
a synonym of "must" or "shall," then the use of "should" in the jury instruction is error.
This court has consistently found that PIK Crim. 4th 51.010 "'does not upset the
balance between encouraging jury nullification and forbidding it. . . . [U]nlike the words
must, shall, and will, the word should does not express a mandatory, unyielding duty or
obligation; instead, it merely denotes the proper course of action and encourages
following the advised path.' Hastings, 2016 WL 852857, at *4." Allen, 52 Kan. App. 2d
at 735. In State v. Singleton, No. 112,997, 2016 WL 368083, at *6 (Kan. App.)
(unpublished opinion), rev. denied 305 Kan. 1257 (2016), this court further explained:
29
"[A]s every teacher instructing a class knows, and as every parent admonishing a
child knows, should is less of an imperative than must or will. . . . Should as used in this
instruction is not the equivalent of 'must' or 'will' used in the instructions discussed [in
other cases]. Should is advisory. It is not an imperative. The district court did not err in
giving this instruction."
Green argues these decisions are distinguishable because here the prosecutor and
the district court also made comments that further prohibited the jury from exercising its
power of nullification. But the record citations Green provides in support of these alleged
comments either do not relate to his arguments or do not exist in the record on appeal. As
Green presents no other arguments as to why the district court erred in giving this
instruction, we find the burden of proof jury instruction was legally appropriate, and the
district court did not err.
DID THE DISTRICT COURT VIOLATE GREEN'S CONSTITUTIONAL RIGHTS AT SENTENCING?
Finally, Green argues the district court violated his constitutional rights under the
Sixth and Fourteenth Amendments to the United States Constitution as recognized in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when
it sentenced him without requiring the State to prove his prior convictions or criminal
history to the jury beyond a reasonable doubt. Green concedes that the Kansas Supreme
Court has already decided this issue against him but raises it to preserve the issue for
federal review. See Fisher, 304 Kan. at 264; State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d
781 (2002). Because there is no indication that our Supreme Court is departing from this
position, we are duty bound to follow it. See State v. Hall, 298 Kan. 978, 983, 319 P.3d
506 (2014). The district court properly used Green's criminal history to establish his
sentence.
Affirmed.
30