DocketNumber： No. 104,295
Citation Numbers： 47 Kan. App. 2d 703, 280 P.3d 805
Judges： Buser, Green, Pierron
Filed Date： 6/15/2012
Status： Precedential
Modified Date： 7/24/2022
A jury found Steven H. Weis guilty of two counts of reckless aggravated battery, K.S.A. 21-3414, and one count of criminal use of a weapon, K.S.A. 21-4201(a)(l). Steven appeals his convictions and sentencing. We affirm.
Factual and Procedural Background
This case arose from a disturbance between Steven and Anthony Napoleone, Thomas Nece, and Justin Lakkari in the early morning hours of Sunday, July 13, 2008. Anthony and Justin were friends. Steven had been dating Alicia Napoleone, Anthony’s sister and Thomas’ stepsister. At the time of this incident, Steven was living on a farm near Brookville. Alicia lived in Salina.
There was some evidence that Steven was not on friendly terms with Anthony, Thomas, and Justin. Specific disagreements, however, were not admitted at trial. These included that Anthony disliked Steven for introducing Alicia to methamphetamine use, that Steven had fought Justin after hitting Justin’s girlfriend, and that Steven had fought Thomas in a bar. The trial court reasoned that even if the four men “had 20 fights in the past or 20 arguments in the past,” “those matters were settled” and were not “really relevant as to what happened” on July 13, 2008.
After receiving Steven’s phone call, Alicia left the group and started walking towards her house. Steven soon arrived with his stepbrother, who was giving him a ride. The men picked up Alicia and drove to the Hadens’ house to retrieve Alicia’s vehicle, an older Jeep in poor mechanical condition. After Steven’s stepbrother left, Steven and Alicia discovered the Jeep would not start. By that time, the group which had been partying returned to the Hadens’ house. From this point on, the accounts of what occurred were dramatically different.
At trial, Alicia testified that she and Steven began walking to her house after one of the group approached the Jeep. Steven agreed, adding “[t]hat’s when I found out that her friends, family were there.” Steven said he told Alicia, “I was going to go, she can come if she wanted to,” and that Alicia had to run “around the Jeep to catch up with me.” Of note, Steven and Alicia specifically denied there was any argument or violence between them while they were at or around the Jeep.
Alicia testified that she soon noticed Anthony, Thomas, and Justin following them. According to Alicia, Anthony and Thomas started yelling at Steven, calling him “a bitch and a pussy,” and “telling him to come back and fight.” Alicia said she told Steven to keep walking.
Alicia said Anthony, Thomas, and Justin continued to follow them, and she “eventually turned around to kind of stop it, because it was just kind of monotonous.” She again told Steven to keep walking. Alicia testified that Anthony passed by her towards Steven with a look of anger on his face. Alicia tried to talk to Thomas and Justin, but they soon bolted past. Alicia testified she turned around and “all four of them . . . were all kind of fighting together.”
Anthony, Thomas, Justin, and the other State’s witnesses provided a markedly different account. Anthony testified that after the group had returned to the couple’s house, he noticed Steven and Alicia arguing in the Jeep. Anthony said he then saw Steven “smack her in the face.” Anthony said he “took a deep breath and minded my own business for a second.”
Anthony stated that Steven then left the Jeep and that Alicia followed him. But, according to Anthony, Steven “smacked her again” and “turned back to me and said, what’s the matter, pussies, you not going to fight me tonight, something like that.” Anthony said this statement “pushed my button . . . [s]o, I started walking after him.” When asked why he had followed Steven, Anthony answered, “Because I was angry that he had hit my sister.”
Anthony testified that Steven and Alicia stopped together “and waited for me.” Anthony admitted, “I was screaming at him,” but he could not recall at trial what he had said. Anthony said Alicia was screaming as well, but at trial he had “no idea” what she said. His next memory was Steven taking a swing at him. Anthony said he ducked and fell to the ground. He was unable to feel his legs.
Thomas testified regarding the events in the early morning. He testified that he was entering the Hadens’ house when “someone said that Steven and Alicia were out front arguing and then Justin said that he . . . saw him hit her.” Thomas recalled that Steven and Justin “exchanged some words,” and then Steven “turned around.
Thomas said he approached Steven and told him, “[H]ey, man, you can’t be doing that shit, what’s your problem.” Thomas said Steven replied, “[expletive deleted] you, whatever, I’ll do what I want, pussies, [you] can’t do anything to stop me, or something like that.” Thomas agreed with Anthony that Steven and Alicia stopped together, and he agreed with Alicia that it was Anthony who approached the couple because “that’s his blood sister, so he’s like, you know, I’ll go take care of this.” Soon after, according to Thomas, Steven “grabbed Anthony and hit him in the back, and then Anthony was laying [sic] on the ground.”
Justin also testified at trial. He was inside the Hadens’ house when he heard someone yell. He looked out and saw Steven and Alicia outside the Jeep. Justin said he “witnessed [Steven] either punch or slap [Alicia]. I don’t know exactly what it was. But he hit her.”
Justin said Steven and the other men were yelling at each other, but he could not recall in detail what each one said. He did remember that Anthony “said something about hitting my sister. He said, why don’t you do that over here, or something like that, in front of my face.”
Justin said Anthony and Thomas followed Steven and Alicia as they walked away, but “I couldn’t see very well. I didn’t have my glasses on.” Justin and his wife followed at some distance while the four individuals “kept yelling at each other.” Eventually, when “Anthony had gotten close to Steven,” Steven “kind of turned around and punched.” Justin said Anthony fell to the ground and did not get up.
Justin said he put Steven in a bear hug, that the two fell and wrestled on the ground, and that Steven managed to break loose and began hitting him. Justin said he was scratched and cut, but that he never saw a weapon. There was broken glass at the scene because Alicia threw beer bottles at Thomas and Justin during the fight.
The State also called Thomas’ wife, Lynnsey Nece, and Justin’s wife, Jennifer Ruston Lakkari, whose testimony was generally con
In his defense, Steven called Jeremy Watkins, an investigator with the Salina Police Department, who interviewed Anthony at the hospital after the fight. Watkins said Anthony told him that “he didn’t like Steven and Aicia being together, and that he went out to talk to Aicia and try to get her to come back to the house and stay away from Steven.” Anthony did not tell Watkins that Steven had slapped Alicia.
Whatever triggered the fight, the tragic result was that Anthony’s spinal column was severed by the broken tip of a knife which lodged in his spine and paralyzed him from the rib cage down. Forensic testing matched the broken tip with a knife found at the scene. Additionally, Thomas suffered numerous stab wounds, and DNA taken from the remaining portion of the knife’s blade matched a DNA sample taken from Thomas.
At trial, Steven denied the possession or use of the knife. But when Steven called 911 after the fight, he reported that someone had been stabbed. And when interviewed by the police soon thereafter, Steven said he “didn’t know” if he had carried a knife. Steven told the police he “hit one of the men,” that “he might have had something in his hand,” and that he “might have had some keys in his hand.” At trial, however, Steven admitted that he had no keys during the fight.
The State charged Steven with aggravated battery against Anthony, Thomas, and Justin and with criminal use of a weapon. The juiy returned guilty verdicts on the lesser included offenses of reckless aggravated battery as to Anthony and Thomas, but acquitted Steven of aggravated battery with respect to Justin. The jury also returned a guilty verdict on the criminal use of a weapon charge. The district court sentenced Steven to 41 months’ imprisonment. He appeals.
Prior to trial, the State moved to admit evidence under K.S.A. 60-455 that Steven slapped Alicia in the presence of the group shortly before the stabbing. The State argued the slap was “necessary ... to prove motive” and “relevant to show the reason why the altercation began.” Additionally, the State argued that because Steven’s defense theory “involvefs] self-defense,’’together with the victims’ statements, “motive is a material issue in this case.”
The trial court conducted a K.S.A. 60-455 hearing. Steven’s counsel disputed the propriety of an instruction on motive, arguing the only possible motive shown by the challenged evidence was “the reason these three people attacked my client.” The trial court allowed the evidence, but it did not instruct the jury on motive. Rather, it instructed the jury: “Evidence has been admitted tending to prove that the defendant committed battery against Alicia Napoleone. This evidence may be considered solely for the purpose of explaining the events leading up to the altercation on July 13, 2008.”
In State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), our Supreme Court directed: “Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.” Steven asserts in passing that the trial court admitted “res gestae evidence . . . independent of K.S.A. 60-455.” Our general rule is to disregard passing assertions, State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010), but Steven’s assertion is contrary to the record.
The trial court did not admit the evidence Steven slapped Alicia independent of K.S.A. 60-455. The State moved for the admission of this evidence pursuant to that statute and at the hearing the trial judge announced, “I have before me today the State’s Motion to Admit Evidence pursuant to K.S.A. 60-455.” The trial court then carefully conducted a thorough analysis of the challenged evidence in accordance with the dictates of K.S.A. 60-455 and Gunby. Given this record, we see no reason to consider a supposed use of res gestae evidence independent of K.S.A. 60-455. We will consider Steven’s primary argument, however, that the trial court “did not
Our Supreme Court has refined the test for the admissibility of evidence under K.S.A. 60-455 since Gunby.
“Determining whether evidence was properly admitted pursuant to K.S.A. GO-455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard for reviewing materiality is de novo. The appellate court must also determine whether the materia] fact is disputed, i.e., the element or elements being considered must be substantially at issue in die case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate couit reviews relevance — in particular, the probative element — of K.S.A. 60-455 evidence for abuse of discretion. The burden of proof is on the party alleging the discretion is abused. The court must also determine whether die probative value of the evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion.” State v. Hollingsworth, 289 Kan. 1250, Syl. ¶ 6, 221 P.3d 1122 (2009).
Steven claims the evidence that he slapped Alicia was not in dispute, was not material, and was more prejudicial than probative. We address these claims in order.
Steven maintains the evidence was not disputed based solely on the testimony of Anthony, Thomas, and Justin that they “chose to pursue” Steven “after they either saw or heard that Steven had slapped Alicia.” Of course, this was their testimony. But Steven and Alicia both specifically denied that Steven slapped Alicia. If Steven did not slap Alicia, then Anthony, Thomas, and Justin chose to pursue Steven for another reason. Regardless, the challenged evidence was highly disputed. As detailed earlier, we may easily determine that the challenged evidence was in dispute.
We next consider whether the evidence was material — whether it had a legitimate and effective bearing on the decision in the case. Steven argues it did not because it “did not tend to prove any element of the crimes charged.” (Emphasis added.) Whether or not the evidence was material to the elements of the crimes, we believe it was very material to Steven’s claim of self-defense.
“A person who initially provokes the use of force against hiinself is not permitted to use force to defend himself unless the person reasonably believes that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the other person or the person has in good faith has withdrawn from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.” (Emphasis added.)
Steven does not challenge this instruction on appeal. Therefore, if the jury had decided the case based on self-defense, it would have had to consider whether Steven initially provoked the use of force against himself. Evidence that Steven slapped Alicia in the presence of her family members would certainly have been material to that finding. The slap could have been understood as an integral part of Steven's taunts to Anthony, Thomas, and Justin— a display of violent mastery over Alicia coupled with a mocking, verbal challenge to her male family members.
Steven denied the slap and the taunt, and Alicia supported his testimony. But whether Steven had slapped Alicia contemporaneously with his taunts to her family members was a question for tire jury. See State v. Hunt, 257 Kan. 388, 394, 894 P.2d 178 (1995). The evidence that Steven slapped Alicia was therefore material under K.S.A. 60-455. See Gunby, 282 Kan. 39, Syl. ¶ 3 (“The list of material facts in K.S.A. 60-455 is exemplary rather than exclusive.”); State v. Corchado, 188 Conn. 653, 668, 453 A.2d 427 (1982) (evidence that defendant had slapped manslaughter victim “was relevant because it clearly had a bearing on the existence of facts the jury were ultimately required to determine, i.e., on the issue of self-defense”).
The final step in the K.S.A. 60-455 analysis is to consider whether the evidence that Steven slapped Alicia was more prejudicial than probative. Steven denies the evidence was probative because “the witnesses could have been instructed to say that they were concerned about Alicia and thus, decided to follow the cou
In fact, Steven essentially concedes the probative nature of the challenged evidence in this case by stating: “For three days, the jury heard over ten times from several State witnesses that Steven had struck Alicia. With this type of testimony, the jury could have been misled that Steven was the initial aggressor because he first struck Anthony’s and [Thomas’] sister.” We agree the jury could have reached this conclusion, but that does not mean it would have been “misled.” The jury was not obliged to find, as Steven maintains on appeal, that “Anthony, [Thomas], and Justin were the initial aggressors.”
Evidence that Steven slapped Alicia was also not unfairly prejudicial. From the perspective of the State’s eyewitnesses, it was an integral part of the conflict, not an act gratuitously introduced to suggest, as Steven maintains on appeal, that he “without hesitating, battered people.” It was therefore distinguishable from the sort of propensity evidence which is more typically prejudicial than probative. See State v. Cook, 45 Kan. App. 2d 468, 474, 249 P.3d 454 (2011) (“[T]he only purpose of presenting evidence of his prior marijuana conviction was to show his propensity to possess marijuana.”).
For all of these reasons, the trial court did not err in admitting evidence, in accordance with K.S.A. 60-455, that Steven slapped Alicia immediately before the stabbing.
As mentioned earlier, the trial court provided a limiting instruction regarding how the jury should properly consider the K.SA. 60-455 evidence. The trial court also instructed the juiy oh self-defense. The trial court omitted the following sentence from the “Use of Force in Defense of Person” pattern instruction, PIK Crim. 3d 54.17: “When use of force is permitted as (self-defense)
. . . there is no requirement to retreat.” Additionally, the trial court also gave a non-PIK self-defense instruction based on State v. Bradford, 27 Kan. App. 2d 597, 601-02, 3 P.3d 104 (2000): “Self-defense requires intentional conduct. A charge of recklessness involves an unintentional act. Self-defense is not available as a defense against a charge of reckless conduct.”
Steven raises two challenges to the jury instructions. First, he claims error in the wording of the K.S.A. 60-455 limiting instruction. Steven now contends the trial court should have instructed the jury “that the battery evidence could be considered] for proving motive. If the jury had been properly instructed that the evidence could be used to show motive, then the jury could have considered Steve[n]’s motive.” Steven does not explain how the evidence he slapped Alicia showed his motive to commit the charged crimes or, if it did; how the jury’s use of the evidence for that purpose would have assisted him at trial. Steven’s counsel at the instructions conference, a different counsel than at the K.S.A. 60-455 hearing, did object to the omission of motive, although the basis was unclear.
Second, Steven complains that the self-defense instructions omitted the no-duty-to-retreat language. The State correctly notes that “[t]here is no explanation on the record” why the no-duty-to-retreat language was omitted. The record does show that the trial court and counsel “spent considerable time reviewing the jury instructions” off the record, so perhaps the omission was not inadvertent. In any event, neither party objected to the omission when the juiy instructions were submitted to the jury.
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and
Critical to the application of this law in the present case is the fact that the juiy did not base its verdict on self-defense. The jury was instructed, as noted above, that self-defense did not apply to reckless conduct, and Steven does not appeal this instruction. Of course, jurors are presumed to follow their instructions. See State v. Reid, 286 Kan. 494, Syl. ¶ 18, 186 P.3d 713 (2008). Additionally, the prosecutor informed the jurors that if “you find that the elements of reckless aggravated] battery are met,” then “self-defense is not available. It is not a defense to reckless aggravated] battery.” Because the jury convicted Steven only on the lesser included offenses of reckless aggravated battery, and because the criminal use of a weapon conviction did not turn on the use of the knife but only on the possession or carrying the knife, the jury had no need to consider self-defense with regard to these two crimes.
Quite simply, the omission of motive from the K.S.A. 60-455 limiting instruction did not come into play. As Steven’s counsel observed at the K.S.A. 60-455 hearing, the “motive” suggested by such an instruction would be the motive of Anthony, Thomas, and Justin to fight Steven. That would go to the initial aggressor question, but since the jury convicted on reckless, not intentional, conduct, the materiality of such a motive was no longer at issue. Given tire jury’s verdict, Steven could not have been prejudiced by the omission.
Moreover, if the trial court had written the limiting instruction as Steven now urges, tire jurors might have inferred, as Steven does on appeal, that the motive in question was Steven’s motive to com
In the present case, however, we see no reason why the jury should have considered evidence that Steven slapped Alicia as his motive for aggravated battery on Anthony, Thomas, or Justin. The risk in providing that instruction is that the jury could have inferred a motive of pure malice, which could very easily have become an inference of propensity — which is exactly the danger that a K.S.A. 60-455 hmiting instruction is designed to prevent. Under the unique facts of this case, we believe the trial court properly limited the jury’s consideration of the K.S.A. 60-455 evidence.
We do not hold that the K.S.A. 60-455 limiting instruction given in the present case was the best or sole way to instruct the jury. Notably, Steven does not appeal the language used in the instruction, only the omission of a reference to motive. Our holding is that, given the evidence before it, the trial court did not err by omitting motive.
The other aspect of the instructions Steven appeals, the omission of the no-duty-to-retreat language, also did not come into play. That language again applied only to self-defense, and self-defense did not apply to any of the crimes of conviction. Thus there was not a real possibility the jury would have rendered a different verdict if it was instructed as Steven suggests. A more likely result would have been juror confusion based on the tension between the no-duty-to-retreat language and the initial-aggressor instruction, which required the initial aggressor to have “used eveiy reasonable means to escape.”
On appeal, Steven does not contest that Anthony suffered great bodily harm or that Thomas sustained bodily harm from a knife. Instead, Steven contends there was no substantial evidence to prove that he was the person who used a knife during the commission of either of the aggravated batteries. Similarly, Steven argues, with respect to the criminal use of a weapon conviction, “[n]ot one State’s witness could testily that he or she saw [him] possessing or carrying” tire knife.
Our standard of review provides:
“ ‘When tire sufficiency of tire evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
We begin our analysis with an obvious fact. Someone used, and therefore possessed or carried, the knife which injured Anthony and Thomas. There was testimony that Anthony was the first of the three men to reach Steven, and the evidence indicated he fell almost immediately when the tip of the knife severed his spinal column. There was also testimony that Steven struck Anthony in the back immediately preceding his fall. Thomas was apparently the next to reach Steven, and his blood was found on the blade of the knife. All of this evidence, viewed in the light most favorable to the prosecution, points to Steven’s use of the knife.
This inference is greatly strengthened by Steven’s inculpatory statements after the fight. Steven called 911 and said someone had been stabbed. When asked by the police if he had carried a knife, Steven said he did not know. More importantly, he said he might have had something in his hand when he hit one of the men, perhaps his keys. This admission, with an attempt at mitigation — the substitution of keys for a knife — shows a consciousness of guilt. See Appleby, 289 Kan. at 1061 (discussing law on “evidence to establish the defendant’s consciousness of guilt”). Viewed in the light most favorable to the prosecution, a rational factfinder could have found
Offender Registration Pursuant to the Kansas Offender Registration Act
The trial court ordered Steven to register as an offender under K.S.A. 2010 Supp. 22-4902(a)(7) based on its finding that he had used a deadly weapon in the commission of reckless aggravated battery. This statute is part of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Steven contends the district court’s finding violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because a jury did not make the finding which resulted in an increased penalty for Steven’s crimes.
This is a new argument on appeal, but we will consider it because it alleges a violation of fundamental rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Our review is unlimited. See McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004).
Steven acknowledges State v. Chambers, 36 Kan. App. 2d 228, 239, 138 P.3d 405, rev. denied 282 Kan. 792 (2006), where this court held a district court could find a crime was sexually motivated for purposes of sex offender registration. The Chambers panel reasoned that because sex offender registration under KORA did not increase the maximum sentence, it did not engage the protections announced in Blakely and Apprendi. Steven contends, however, “[t]he Chambers decision was wrong because it narrowly interpreted the rule in Apprendi by holding that it should only be applied to increased sentences, not increased punishment.”
Chambers distinguished between sentences and punishment based on precedent of the Kansas Supreme Court. See 36 Kan. App. 2d at 237-39. This court is required to follow such precedent absent some indication our Supreme Court is departing from its
Chambers also cited Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), where the United State Supreme Court held sex offender registration posted on the Internet was not punishment for ex post facto purposes. The Court reached this conclusion despite the “adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.” 538 U.S. at 99. The Court reasoned the “purpose and principal effect of notification are to inform tire public for its own safety, not to humiliate the offender.” 538 U.S. at 99. Since Steven alleges he is subject to “punishment” based on “the certain stigma attached” to offender registration, we can rely on Smith here.
Steven provides no evidence of stigma. We are therefore left with whatever inferences we might make from the registration itself. We do not believe these inferences are sufficient to show Steven was deprived of his fundamental rights. If under Smith the stigma attached to sex offender registration is not punishment, the stigma Steven might be expected to suffer from offender registration is not punishment.
Steven also mentions he must perform certain duties connected with registration or face prosecution under K.S.A. 22-4903, and he also must pay a $20 fee whenever importing to a sheriffs office. See K.S.A. 2010 Supp. 22-4904(e). But Steven cites no authority holding these requirements are punishment, and he provides no reasoning supporting the conclusion. This is akin to waiving or abandoning an issue on appeal. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
If we were to consider the registration requirements, we would interpret them as part of the regulatory scheme and not as punishment. In Smith, for example, the “[widespread public access” caused by posting sex offender registration on the Internet was “necessary for the efficacy of the scheme.” 538 U.S. at 99. The “attendant humiliation” was “but a collateral consequence of a valid regulation.” 538 U.S. at 99.
Here as well, enforcement of the registration requirements is critical to the efficacy of the scheme. Steven’s exposure to further
We also believe the $20 fee is not punitive but a reasonable way to reimburse sheriffs’ offices for services provided in the regulatory scheme. See K.S.A. 2010 Supp. 22-4904(e) (“All funds retained by the sheriff . . . shall be credited to a special fund . . . which shall be used solely for law enforcement and criminal prosecution . . . and which shall not be used as a source of revenue to reduce the amount of funding otherwise made available to the sheriffs office.”); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (characterizing BIDS fees as “recoupment” and “not fines or, indeed, any part of the punishment or sanction”).
Finally, subsequent to briefing and oral argument in this case, in State v. Unrein, 47 Kan. App. 2d 366, Syl., 274 P.3d 691 (2012), our court specifically rejected legal arguments similar to those raised by Steven in the present case. In short, Unrein is dispositive of this issue.
The stigma Steven might expect to suffer from registration is not an increase in sentence or punishment but a collateral consequence of his registration as an offender. Accordingly, we do not believe the trial court’s factual finding violated Blakely and Apprendi. Steven has not shown he was deprived of his fundamental constitutional rights.
Cumulative Error
Finally, Steven contends he was deprived of a fair trial by cumulative error. Since we have not found error, we do not find cumulative error. See State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). We also conclude based on the strength of the evidence that any error which might have occurred did not deprive Steven of a fair trial. See State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
Affirmed.