State v. Lax ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,540
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DALTON XAVIER LAX,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed December 18, 2020.
Affirmed in part, reversed in part, and remanded with directions.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: Dalton Xavier Lax appeals his convictions of attempted first-degree
murder, aggravated battery, criminal discharge of a firearm at an occupied dwelling, and
criminal possession of a firearm. Lax claims: (1) the complaint charging him with
attempted first-degree murder was duplicitous; (2) the district court gave a clearly
erroneous jury instruction defining premeditation; and (3) the district court violated his
constitutional right to a jury trial by accepting his stipulation to two elements of criminal
possession of a firearm without first obtaining a knowing and voluntary waiver of his
right to a jury trial. We find that Lax is entitled to relief on his third claim, but we
otherwise affirm the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
The events that led to Lax's convictions began with the February 2016 murder of
DelJuan Patton, a member of the Topeka street gang known as the Four Corner Hustlers.
Patton's father was a leader of the Four Corner Hustlers, and Patton's brother and Lax
were members as well. Lax and Patton were close friends; Lax described him as "like a
brother." Rumor had it that Trevon Praylow, a member of rival street gang the Gangster
Disciples, or another Gangster Disciple was involved in Patton's murder.
This case arises from two separate shootings involving Praylow. On May 3, 2016,
Praylow drove to the hospital in a red Pontiac Grand Prix and received treatment for a
gunshot wound to his back. He told police he had been at a park waiting for his child to
arrive and he did not know who shot him. The same day, two witnesses came forward
and reported to police that an individual in a white vehicle had shot at an individual in a
red vehicle near the intersection of Fillmore Street and 16th Street, but neither witness
could identify the individuals involved. Police collected a shell casing from the road near
the intersection and, while processing Praylow's car, found a projectile in the driver's
door.
The second shooting occurred on June 25, 2016, the day after what would have
been Patton's birthday. Praylow was staying at his sister's duplex on Southeast 44th
Terrace with his sister, her children, and her boyfriend. In the early morning hours,
Praylow heard gunshots outside the duplex. Praylow's sister called the police, but
Praylow told them he did not know what happened. Police collected shell casings from
the scene and documented at least six bullet holes in the home's living room window.
On August 24, 2016, Praylow was arrested and charged with criminal possession
of a firearm. During an initial meeting with law enforcement about that case, Praylow
identified Lax as the person who had shot him. According to Praylow, on May 3, 2016,
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Lax pulled up next to him near the intersection of 16th and Fillmore Streets, driving a
white Grand Prix, and shot him. As for the June 25, 2016 shooting at his sister's duplex,
Praylow said he looked out a side door just after the shooting and saw Lax run away and
get into the same white Grand Prix. Praylow explained that he had not at first identified
Lax as the shooter because he wanted to retaliate personally, but after his own arrest he
was more concerned with protecting his family and loved ones. Praylow believed that
Lax had shot him and shot at his sister's home seeking revenge for Patton's murder.
On August 25, 2016, the State charged Lax with one count of intentional
aggravated battery resulting in great bodily harm involving the May 3, 2016 shooting of
Praylow. A felony arrest warrant was issued, and the next day Topeka police arrested Lax
at a UPS store, where he was trying to ship a cell phone. Police seized the cell phone and
Detective Patrick Ladd of the Topeka Police Department extracted information from the
phone. The extraction revealed prior text messages between Lax and his girlfriend,
Tiffany Hill, about her purchasing a gun for him.
In early September 2016, FBI agents told Detective Jason Judd of the Topeka
Police Department that a man named Cleo Clemons was hiding a gun at his home and
that the gun was related to Lax. On September 7, 2016, Judd went to Clemons' home and,
after Clemons consented to a search, officers found a silver and black 40-caliber Smith
and Wesson handgun in a filing cabinet in Clemons' bedroom closet. Clemons, a
longtime family friend of Lax's mother, Leonna Donnelly, said that Donnelly had called
him and asked him to pick up an unidentified item from under the porch of her home.
When Clemons looked under Donnelly's porch, he found a gun wrapped in a hat and a
shirt; he took the items home and put them in his filing cabinet. The police traced the gun
and discovered that Hill had bought it at a pawn shop in Topeka in April 2016. Forensic
testing showed that fired cartridge cases recovered at the scenes of the May 2016 and
June 2016 shootings had been fired from the gun.
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On September 21, 2016, Hill was indicted in federal court for making a straw
purchase of the gun. Although at first reticent, Hill eventually admitted that she had
bought the gun at Lax's request and had given the gun to Lax. Hill also said that Lax told
her in May 2016 that he had just shot Praylow and in June 2016, Lax told her that he and
a friend had shot at Praylow's sister's home. The white Grand Prix used in the shootings
belonged to Hill, but she let Lax drive the car at the time.
On February 27, 2017, the State filed an amended complaint, charging Lax with
one count of attempted first-degree murder, one count of intentional aggravated battery
resulting in great bodily harm, one count of criminal discharge of a firearm at an
occupied dwelling, and one count of criminal possession of a firearm. There were several
pretrial motions filed in the case, but none related to this appeal.
The four-day jury trial began on May 14, 2018. The State presented evidence from
18 witnesses and over 100 exhibits establishing the above facts. The State also presented
expert testimony regarding gang culture. Lax did not testify at trial, but he asserted a
general denial defense to both shootings, attacking the credibility of Praylow and Hill as
witnesses. During the jury instruction conference, Lax informed the district court that he
wanted to stipulate to two elements of the charge of criminal possession of a firearm. Lax
agreed to stipulate that he was convicted of a felony within the past 10 years and that he
was not found to be in a possession of a firearm in that prior felony conviction.
The jury found Lax guilty of all charges. On August 30, 2018, the district court
sentenced Lax to 554 months' imprisonment for attempted first-degree murder, to run
concurrent with 38 months' imprisonment for aggravated battery, 11 months'
imprisonment for criminal discharge of a firearm at an occupied dwelling, and 7 months'
imprisonment for criminal possession of a firearm. Lax timely appealed the district
court's judgment.
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WAS THE ATTEMPTED FIRST-DEGREE MURDER CHARGE DUPLICITOUS?
On appeal, Lax first claims that Count 1 of the amended complaint charging him
with attempted first-degree murder was duplicitous. Count 1 charged Lax with attempted
first-degree murder of Praylow committed between May 3, 2016 and June 25, 2016. Lax
asserts that the complaint was duplicitous because it contained charges for two separate
crimes of attempted first-degree murder in a single count. Lax's argument focuses only on
the language of the amended complaint, he makes no challenge to the jury instructions.
But in arguing that the error was not harmless, Lax asserts that the jury could have
convicted him of attempted first-degree murder without unanimously agreeing on which
allegation supported the charge.
For its part, the State agrees that Count 1 of the amended complaint is duplicitous
but asserts that any error was harmless. Resolving whether Count 1 of the amended
complaint is duplicitous requires examination of the charging document, which is a
question of law. An appellate court exercises unlimited review over questions of law.
State v. Ruiz, 51 Kan. App. 2d 212, 223, 343 P.3d 544 (2015).
Lax acknowledges that he did not raise this issue in district court. Generally,
Kansas appellate courts do not address issues for the first time on appeal unless at least
one of three recognized exceptions apply:
"'"(1) [T]he newly asserted claim involves only a question of law arising on
proved or admitted facts and is finally determinative of the case; (2) the claim's
consideration is necessary to serve the ends of justice or to prevent the denial of
fundamental rights; or (3) the district court's judgment may be upheld on appeal despite
its reliance on the wrong ground or reason for its decision."' [Citation omitted.]" State v.
Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020).
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Lax asserts that the first exception applies here, but he makes no argument to
explain why. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018) (holding that
the failure to explain why an issue should be considered for the first time on appeal is
fatal). He also invokes the second exception "because duplicitous charges implicate the
fundamental right to a unanimous verdict." The State asserts that we should not consider
this issue for the first time on appeal because none of the exceptions apply.
The Kansas Supreme Court has stated that "the right to a unanimous jury verdict is
statutory and not constitutional; therefore, the exception for review of issues involving
fundamental rights [is] not implicated." State v. Brown, 298 Kan. 1040, 1055, 318 P. 3d
1005 (2014). This was so because the right to a unanimous jury verdict recognized in the
federal courts under the Sixth Amendment to the United States Constitution was one of
the few rights in the Bill of Rights that was never incorporated against the States through
the Fourteenth Amendment. But in Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390,
1397, 206 L. Ed. 2d 583 (2020), the United States Supreme Court held that the Sixth
Amendment right to a jury trial, as incorporated against the States through the Fourteenth
Amendment, requires a unanimous jury verdict to convict a defendant of a serious
offense. Thus, a defendant charged in state court with a felony has a constitutional right
to a unanimous jury verdict. Because Lax's duplicity claim implicates a fundamental
constitutional right, we will consider the claim for the first time on appeal for this reason.
As stated above, Lax narrowly frames his argument as one challenging the
complaint. He contends that the May 3, 2016 and the June 25, 2016 shootings "were two
separate incidents and could have and should have been charged separately." He asserts
that "the duplicity of the charging document prejudiced Mr. Lax by allowing the jury to
convict him of one count of attempted first degree murder, even if it did not unanimously
agree on which allegation supported that charge."
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"A complaint which charges two separate and distinct offenses in a single count is
duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the
same count, not the charging of a single offense involving a multiplicity of ways and
means of action." State v. Daniels, 278 Kan. 53, 71-72, 91 P.3d 1147 (2004). Our
Supreme Court has explained that "'[t]he vice of duplicity is that the jury is unable to
convict of one offense and acquit of another offense where both are contained in the same
count.'" 278 Kan. at 72 (quoting State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329[1975], superseded by statute on other grounds as recognized in State v. Butler, 307 Kan.
831, 416 P.3d 116 [2018]). In Daniels, the duplicity occurred because the State charged
Daniels, in a single count, with endangering two children, "D.D. and Dante." (Emphasis
added.) 278 Kan. at 72. The problem was that "[t]he jury could not convict Daniels of
endangering one child but acquit her of endangering the other because both offenses were
contained in the same count." 278 Kan. at 72.
The State charged Lax with one count of attempted first-degree murder of Praylow
occurring on or about the 3rd day of May 2016 through the 25th day of June 2016. Had
the State charged Lax in one count with attempted first-degree murder of Praylow
occurring on May 3, 2016 and June 25, 2016, it would be duplicitous because the jury
could not acquit him of attempted first-degree murder on one date and find him guilty of
attempted first-degree murder on the other date because both offenses were contained in
the same count. But that is not the problem here. Count 1 of the amended complaint
charging Lax with attempted first-degree murder does not fail because it is duplicitous.
Lax's actual grievance is that there were multiple acts—the May 3, 2016 shooting
and the June 25, 2016 shooting—that could support the jury's guilty verdict on the
attempted first-degree murder charge, so "we cannot know whether the jury was
unanimous on either distinct act." Despite Lax's consistent focus on the alleged
"duplicity" of the complaint, his jury unanimity argument is one more appropriate to a
multiple acts challenge. "'When several acts are alleged, any of which could constitute the
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crime charged, the court is presented with a multiple acts case.'" State v. Cottrell, 310
Kan. 150, 154, 445 P.3d 1132 (2019).
Our Supreme Court has set forth the appropriate analysis for a multiple acts
challenge:
"This court will apply a three-part test to determine when a multiple acts situation
has occurred such that the jury must agree on the same underlying criminal act. First, the
court must determine if the case truly involves multiple acts, i.e., whether the defendant's
conduct was part of one act or represents multiple acts which are separate and distinct
from each other. Second, the court must consider whether error occurred, i.e., whether
there was a failure by the State to elect an act or a failure by the court to instruct. Third,
the court must determine whether the error is reversible. State v. Colston, 290 Kan. 952,
Syl. ¶ 2, 235 P.3d 1234 (2010), overruled on other grounds by State v. Dunn, 304 Kan.
773, 375 P.3d 332 (2016).
Lax's brief fails to adequately argue a multiple acts error. He does not engage in
the appropriate multiple acts analysis and he cites no legal authority to support a multiple
acts claim. In fact, Lax's brief never refers to any claimed multiple acts violation. As the
State points out in its brief, any attempt by Lax to now raise a multiple acts issue should
be deemed waived or abandoned. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953(2019) (stating that issues not adequately briefed are deemed waived or abandoned).
But even if we charitably construed Lax's brief as raising a multiple acts issue, he
would not be entitled to any relief. Let's assume that Lax's attempted first-degree murder
charge involves multiple acts and we have error because the State failed to elect an act to
support the charge and the district court failed to instruct on jury unanimity. This leaves
us to determine whether the error is reversible.
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In older cases, our Supreme Court determined that the ultimate test for
harmlessness when a unanimity instruction was not requested or given is the "clearly
erroneous" standard as articulated by the Kansas Legislature in K.S.A. 22-3414(3). See
State v. Voyles, 284 Kan. 239, Syl. ¶ 3, 160 P.3d 794 (2007). But in more recent multiple
acts cases, our Supreme Court has applied the harmless error standard in State v. Ward,
292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). See State v.
Moyer, 306 Kan. 342, 359, 410 P.3d 71 (2017). Because the right to jury unanimity is
now considered a fundamental constitutional right, a court will declare an error harmless
only when the party benefiting from the error persuades the court "beyond a reasonable
doubt that the error complained of will not or did not affect the outcome of the trial in
light of the entire record, i.e., proves there is no reasonable possibility that the error
affected the verdict." Ward, 292 Kan. at 569.
The trial evidence against Lax supporting his conviction of attempted first-degree
murder can fairly be described as overwhelming. Praylow testified that on May 3, 2016,
Lax pulled up next to him near the intersection of 16th and Fillmore Streets, driving a
white Grand Prix, and shot him. Two independent witnesses confirmed that an individual
in a white vehicle fired the shots that day. Praylow also testified that he looked out the
door just after the June 2016 shooting and saw Lax run away and get into the same white
Grand Prix. Praylow testified that the shootings were in retaliation for the prior gang
shooting in which Praylow's friend, Patton, was killed.
The police later discovered that the white Grand Prix was owned by Hill, Lax's
girlfriend. The police also discovered text messages on Lax's phone between Lax and Hill
about Hill purchasing a gun for Lax. After receiving a tip, the police found the gun at
Clemons' home. Clemons is a longtime friend of Lax's mother, Donnelly, and Clemons
testified that Donnelly asked him to hide the gun at his house. The police traced the gun
and discovered that Hill had bought it at a pawn shop in Topeka in April 2016. Forensic
testing showed that fired cartridge cases recovered at the scenes of both shootings had
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been fired from the same gun. Hill eventually admitted to police that she bought the gun
at Lax's request and had given the gun to Lax. Hill also testified that Lax told her in May
2016 that he had just shot Praylow, and she testified that Lax told her in June 2016 that
he was involved in the shooting at Praylow's sister's home.
As the State points out in its brief, Lax did not have separate defenses for each
shooting; Lax generally denied that he committed any of the charged crimes. A multiple
acts error may be harmless when the defendant presents a general denial defense and the
case involves a credibility contest between the defendant and the victim. Voyles, 284
Kan. at 253. Kansas appellate court are "less inclined to reverse a multiple acts error
where the defendant presented a unified defense, e.g., a general denial." Moyer, 306 Kan.
362-63. Lax presented just such a defense; he argued at trial that he "did not commit the
crimes that he's been charged with" and attacked the credibility of Praylow and Hill.
Lax points out in his brief that during deliberations, the jury asked a question
about how it should answer the verdict form if it was not unanimous on a specific count.
Lax asserts that this question showed that the jury may not have been unanimous on
which act supported the attempted first-degree murder charge. But as the State replies in
its brief, Lax's argument is speculative. We cannot read anything definite into the jury's
question and it could have been related to any of the charges submitted to the jury.
Moreover, reversibility analysis of a multiple acts error does not require this court to
know for certain whether the jury was unanimous. Rather, we must consider the entire
record and determine whether there is a "reasonable possibility that the error affected the
verdict." Ward, 292 Kan. at 569. In Lax's case, we find there is not.
In sum, we find that the amended complaint charging Lax with attempted first-
degree murder was not duplicitous. Lax is not entitled to a new trial on this ground. We
also find that Lax has waived or abandoned any claim of a multiple acts error. But even if
the issue has not been waived, we find that any multiple acts error on the attempted first-
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degree murder charge did not affect the verdict based on the entire record and was
harmless beyond a reasonable doubt.
WAS THE JURY INSTRUCTION ON PREMEDITATION CLEARLY ERRONEOUS?
Lax next claims the district court gave a clearly erroneous jury instruction defining
premeditation. In the jury instruction on attempted first-degree murder, the district court
defined premeditation as "mean[ing] to have thought the matter over beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous, intentional act of taking another's life."
Lax now argues that the jury instruction given by the district court "does not
adequately draw a distinction between a premeditated, intentional killing and an
intentional killing." He asks that this court reverse his conviction of attempted first-
degree murder and remand for a new trial. The State responds that the Kansas Supreme
Court's holding in State v. Uk, 311 Kan. 393, 461 P.3d 32 (2020), controls and requires
this court to reject Lax's argument.
When reviewing jury instructions:
"'(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, 565, 256 P.3d 801 (2011)].'
"'The first element of this analysis ultimately affects the last one "in that whether
a party has preserved an issue for review will have an impact on the standard by which
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we determine whether an error is reversible.' [Citations omitted.]" Uk, 311 Kan. at 396-
97.
Lax acknowledges that he did not object at trial to the definition of premeditation
in the jury instructions. Thus, if this court finds error, it should reverse only if there was
clear error, meaning that this court is "'"firmly convinced that the jury would have
reached a different verdict had the instruction error not occurred."'" Uk, 311 Kan. at 401
(quoting State v. Williams, 208 Kan. 1439, 1451, 430 P.3d 448 [2018]).
Next, turning to whether the instruction was legally appropriate, Lax sets forth a
three-page historical survey of Kansas courts' understanding of the term premeditated,
noting that early definitions of premeditation conceived of an act that was planned or
schemed about ahead of time, while the current pattern jury instruction—and the
definition given at Lax's trial—defines premeditation as having "thought the matter over
beforehand, in other words, to have formed the design or intent to kill before the act." See
PIK Crim 4th 54.150(d) (2018 Supp). Lax argues that this definition renders premeditated
acts materially indistinguishable from intentional acts, which K.S.A. 2019 Supp. 21-
5202(h) defines as those that occur when a person has a "conscious objective or desire to
engage in the conduct or cause the result." This is so, according to Lax, because thinking
the matter over beforehand necessarily occurs when a person has a conscious objective or
desire to engage in the conduct or cause the result.
After Lax filed his appellate brief, the Kansas Supreme Court rejected the same
argument in Uk, a case in which the jury received the same definition of premeditation as
did Lax's jury. See 311 Kan. 393, 396. In his direct appeal, Sonny Uk argued that the
definition of premeditation given to the jury left it "unable to distinguish between
premeditated (first-degree) murder and intentional (second-degree) murder," because
without language defining premeditation to include prior planning or scheming,
premeditation is the same as intent. 311 Kan. at 401. Our Supreme Court stated:
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"The court has previously expressed strong general support for the use of PIK
instructions by district courts. The ultimate goal of any jury instruction is effective
communication. That goal is achieved through words given and understood in context.
Though the words 'intent' and 'intentional' are both used within the two sentences
comprising [the jury instruction defining premeditation], the meaning of those two words
is communicated within the context of the other words that are also used. Those other
words leave no doubt that 'premeditation'—as a thought process conducted some time
before an act—is clearly different from the intentional nature of the act itself. Thus, the
instruction fairly and clearly sets forth the law, and no reasonable jury would have
trouble distinguishing the conduct described by [the jury instruction defining
premeditation] from the statutory definition of intentional conduct set forth in K.S.A.
2019 Supp. 21-5202(h).
"We thus find [the jury instruction defining premeditation] to be legally
appropriate. Lacking a challenge to its factual appropriateness, we find no error—let
alone clear error—in the district court's decision to issue an essentially unmodified PIK
Instruction on the definition of premeditation. Accordingly, we need not address
harmlessness." 311 Kan. at 401-02.
As the State points out in its brief, Uk is directly on point, addressed arguments
identical to those Lax raises in this appeal, and is controlling. Lax did not file a reply
brief or otherwise respond to the State's assertion. Moreover, like Uk, Lax does not argue
that the instruction was factually inappropriate, only that it was legally inappropriate.
Under Uk, Lax's arguments fail. The district court did not err in how it defined
premeditation for the jury, much less commit clear error.
DID THE STIPULATION TO THE ELEMENTS OF CRIMINAL POSSESSION OF A
FIREARM VIOLATE LAX'S CONSTITUTIONAL RIGHT TO A JURY TRIAL?
Finally, Lax claims the district court violated his constitutional right to a jury trial
by accepting his stipulation to two elements of criminal possession of a firearm without
first obtaining a knowing and voluntary waiver of his right to a jury trial. During the jury
instruction conference, Lax informed the district court that he wanted to stipulate to two
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elements of the charge of criminal possession of a firearm. Lax agreed to stipulate that he
was convicted of a felony within the past 10 years and that he was not found to be in
possession of a firearm in that prior felony conviction. As a result, the district court's jury
instruction on criminal possession of a firearm included the following stipulation:
"Stipulation No. 1
"The following facts have been agreed to by the parties and are to be considered
by you as true:
"1. That within ten years proceeding [sic] on or about the 3rd day of May, 2016
and on or about the 25th day of June, 2016, the defendant, Dalton Lax, had been
convicted of a felony, to wit: Shawnee County case 08CR549. Defendant further
stipulates he was not found to be in possession of a firearm in case number
08CR549."
Lax now argues that the district court erred by accepting the stipulation reflected
in this jury instruction without first obtaining from him a waiver of his right to a jury
trial. He cites State v. Johnson, 310 Kan. 909, 453 P.3d 281 (2019), to support his claim
and asks this court to reverse his conviction of criminal possession of a firearm.
Once again, Lax acknowledges that he did not raise this issue at trial. As already
stated above, Kansas appellate courts seldom address issues for the first time on appeal
unless at least one of three recognized exceptions apply. See Harris, 311 Kan. at 375.
Lax asserts that the first two exceptions apply here. Because the right to a jury trial is a
fundamental right, we will address Lax's claim for the first time on appeal. See 311 Kan.
at 375 (recognizing "'the fundamental nature of the right to jury trial'").
To its credit, the State concedes that Lax is entitled to relief under Johnson. In that
case, the Kansas Supreme Court determined that "when a defendant stipulates to an
element of a crime, the defendant has effectively given up his or her right to a jury trial
on that element. [Citations omitted.]" 310 Kan. at 918-19. The Johnson court also stated
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that "because every defendant has the fundamental right to a jury trial, courts cannot
accept a jury trial waiver '"unless the defendant, after being advised by the court of his
right to trial by jury, personally waives his right to trial by jury, either in writing or in
open court for the record."' [Citation omitted.]" 310 Kan. at 919.
Lax stipulated to two elements of the crime of criminal possession of a firearm
when he stipulated that (1) within 10 years before the dates of his current charges he was
convicted of a felony in Shawnee County case No. 08CR549 and (2) he was not found to
be in possession of a firearm with respect to that prior conviction. Because the district
court did not advise Lax of his right to a jury trial on all the elements of criminal
possession of a firearm and it did not properly obtain his personal waiver of that right, the
district court violated Lax's fundamental right to a jury trial. Johnson, 310 Kan. at 918-
19.
The State contends that Johnson was wrongly decided. But this court is duty
bound to follow Kansas Supreme Court precedent unless there is some indication that the
court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144,
390 P.3d 903 (2017). We have no reason to believe that our Supreme Court is wavering
on its recent unanimous decision in Johnson. As a result, we reverse Lax's conviction of
criminal possession of a firearm and remand for further proceedings. The State may retry
Lax on this charge, but if the parties stipulate to any elements of the charge, the district
court must advise Lax of his right to a jury trial on the stipulated elements and Lax must
personally waive his right to a jury trial, either in writing or in open court on the record.
Affirmed in part, reversed in part, and remanded with directions.
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