Opinion
No. 106,308.
2012-09-28
STATE of Kansas, Appellee, v. Erik DeLEON, Appellant.
Appeal from Ford District Court; E. Leigh Hood, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; E. Leigh Hood, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Erik DeLeon was convicted by a jury of aggravated robbery, in violation of K.S.A. 21–3427, and criminal possession of a firearm, in violation of K.S.A.2009 Supp. 21–4204. He appeals several rulings of the trial court and claims his constitutional rights were violated when the trial court sentenced him without proving his criminal history to a jury. We find no error in the trial court's rulings and, therefore, affirm the convictions and sentences.
Factual and Procedural Background
On the evening of March 4, 2010, Armando Gonzales drove to a location in Dodge City, Kansas, to purchase an iPod from someone he knew by the nickname of “Chronic.” When Gonzales arrived, Chronic got into the passenger side of the vehicle, while another individual stood near the door. According to Gonzales, Chronic then showed him an iPod.
Gonzales informed Chronic that the iPod was not working properly, and Chronic indicated they had another iPod they could show him. According to Gonzales, while Chronic was talking to the other individual about getting the second iPod, a third individual reached in through the passenger side and pointed a gun at Gonzales' head. Gonzales could not see this man's face.
According to Gonzales, the armed man was a “darker skinned Hispanic” who spoke with a mixture of English and Spanish words to demand money from Gonzales. After Gonzales pulled out $90 from his pocket, Chronic took the money and the iPod, and the men ran away. Although Gonzales only saw three individuals running from the scene, he explained that more individuals may have been involved because he could not see towards the rear of his vehicle during the incident.
Gonzales reported the robbery to the Dodge City Police Department. A subsequent police investigation revealed that John Joseph Sandoval, Jr., went by the nickname of Chronic. Upon being shown a six-person photographic lineup, Gonzales identified a photograph of Sandoval as the man he knew as Chronic.
Sometime following the robbery, Taylor Dyer contacted the police department about the aggravated robbery. Detective Matthew Roach interviewed Dyer. According to Detective Roach, Dyer said he knew the individuals involved in the incident, and he provided the names of Sandoval, Gregorio Martinez, and DeLeon. According to Dyer, on the night of the robbery Martinez told him “they” had just robbed someone. Martinez said the original plan had been to “jump” the victim, “but that during the meeting, Erik Deleon pulled a gun.” According to Dyer, Martinez grabbed the money from the victim and Sandoval took the iPod. Subsequently, the police determined that a fourth man, Adrian Marrufo, also participated in the aggravated robbery.
DeLeon was charged with one count of aggravated robbery and one count of criminal possession of a firearm. Sandoval and Martinez were also charged with aggravated robbery; however, both entered into plea agreements wherein they agreed to testify against DeLeon in exchange for pleas to reduced charges. Specifically, Martinez pled to misdemeanor theft, and Sandoval pled to misdemeanor battery. Marrufo was not charged.
Sandoval, Martinez, and Marrufo all testified at DeLeon's trial, and each provided somewhat different versions of the aggravated robbery. At the conclusion of the trial, the jury convicted DeLeon of aggravated robbery and criminal possession of a firearm.
On February 24, 2011, after denying DeLeon's motions for new trial and for judgment of acquittal, the district court sentenced DeLeon to a total prison term of 224 months followed by 36 months' postrelease supervision. DeLeon filed a timely appeal.
Denial of Motion for New Trial Based Upon Juror Misconduct
DeLeon contends the trial court abused its discretion when it denied his motion for new trial because of juror misconduct. In particular, DeLeon alleges that one or more jurors slept during the trial.
Prior to sentencing, DeLeon sent three handwritten letters to the trial judge requesting a new trial because (among other reasons) four or five jurors slept through a significant portion of the trial. Subsequently, DeLeon's attorney filed a written motion for new trial, as a “supplement” to the letters.
The district court held an evidentiary hearing to consider DeLeon's motion. Deputy Tom Bogner, the bailiff for DeLeon's trial, testified on behalf of the State. Deputy Bogner explained that his duties as bailiff included watching “over the jury, the jurors” during the trial. Deputy Bogner testified that while he did not see any jurors sleeping during the trial, he did see “jurors nodding off with their heads down or back” for no more than “[a] couple [of] seconds. Three seconds.” Deputy Bogner characterized this behavior as “normal at any jury trial.” No other witnesses presented evidence.
The district judge denied the motion explaining:
“I could tell you this, Mr. Deleon; I certainly sat and watched every single juror during jury selection. I saw no one anywhere close to what I thought would've been either any kind of sleeping, and I would've had direct eye contact with almost all of them during the jury selection process. I could tell you this; once it was brought to my attention by [defense counsel] that he believed or you believed there was someone sleeping on the jury, I kept a fairly close eye on the jury. I believe it was Mr. [B.] was one of the jurors that was brought to my attention, maybe the one that was nodding off. I noticed on a couple occasions after it was brought to our attention that his eyes would close, but he still sat in an upright position. His head was still up. I did not see his head nodding. He would open his eyes after only three or four seconds. From that point forward, I never saw anyone nor at any time up ‘til it was brought to my attention did I see anyone sleeping. The record should reflect that—that other than [defense counsel], it wasn't brought to my attention that we had any jurors sleeping. One of the bailiffs mentioned that I might watch Mr. [B.]. He thought he looked like he was closing his eyes. I believe it was Mr. [G.], brought that to my attention about the same time that you did, [defense counsel]. That's when I began keeping a close eye on Mr. [B.]. As I said, I saw him close his eyes a couple times, but his head was not nodding. He would only keep them closed for a period of three to five, six seconds. He'd open them back up, appeared to be paying attention. So I have no definitive evidence before me that we had any jurors sleeping and at best as you pointed out, [the State], if there were—if you observed someone nodding, without any more in the record, it would appear to fit the rationale set out in the cases of—particular[ly] the Kirby case that [the State] cited in [its] brief.”
DeLeon subsequently filed a motion for reconsideration based upon newly discovered evidence. Specifically, DeLeon asserted that following the denial of his motion, he discovered that E.W., a juror at the trial, noticed some of the jurors sleeping during the trial and during breaks.
The district court held another hearing to consider DeLeon's motion for reconsideration. At the hearing, E.W. testified on behalf of the defense. E.W. testified that during the trial she observed a male juror sleeping during one of the videotapes played for the jury. According to E.W., she had to look around other jurors in order to see this particular juror, as her chair was not actually facing him. E.W. explained that she thought this juror was sleeping because “[h]is head—his eyes were closed and his head was [facing] downward.” When asked how many times she observed this particular juror sleeping, E.W. responded, “I think once, but possibly more. I'm not for sure.” E.W. was also unable to quantify the amount of time the juror slept: “I really don't know. I just looked over and noticed he was sleeping, and I never saw him wake back up. So, I don't really know how long it was.” E.W. acknowledged, however, that the juror's eyes could have been closed “for less than a minute, or [a] minute, or two [minutes].” Additionally, the district judge asked E.W. if she brought this matter to the attention of the bailiffs or an employee of the court during the trial, and E.W. said, “No.”
Sierra Saucedo, a coworker of E.W., also testified as a defense witness. Saucedo testified that E.W. told her “she knew that a juror was falling asleep.” Saucedo acknowledged that she knows DeLeon personally, has visited him at the jail, and at the time of the hearing, her mother was dating DeLeon.
The district court denied DeLeon's motion for reconsideration because DeLeon had failed to show that an act of juror misconduct occurred that substantially prejudiced his right to a fair trial. The district judge explained:
“[E.W.], who was a juror sitting in the Number 3 chair has provided evidence that she thinks she saw a juror sleeping once, or maybe more than once.
“But, I don't have any evidence that this particular juror, according to the records in the court file, if it was juror Number 5, it was Mr. [B.]. There is no evidence before me as to how long he slept, from [E.W.], or whether he was truly asleep.
“Therefore, the same ruling that 1 entered a couple weeks ago would be appropriate today, under the rationale of State versus Kirby and also the rationale as set out in State versus Cooper. There is just nothing here that rises to the level, in this Court's mind, of jury misconduct that's been shown by evidence before it.”
Kansas law provides: “The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A.2011 Supp. 22–3501(1). An appellate court reviews the district court's decision on a motion for new trial for an abuse of discretion. State v. Mathis, 281 Kan. 99, Syl. ¶ 1, 130 P.3d 14 (2006). A judicial action constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Relying upon Ward, a panel of this court, in Bell v. State, 46 Kan.App.2d 488, 491, 263 P.3d 840 (2011), rev. denied September 14, 2012, determined that an appellate court applying the abuse of discretion standard of review to a denial of a motion for new trial based on jury misconduct should analyze the following two questions: (1) Was there “a fundamental failure in the trial based on juror misconduct”? and (2) If there was juror misconduct, did the State “show beyond a reasonable doubt that the error did not affect the trial's outcome”?
Before addressing the merits of DeLeon's argument, we must first determine whether DeLeon properly preserved this issue for appellate review. Relying upon State v. Wheaton, 240 Kan. 345, 729 P.2d 1183 (1986), the State argues this issue was not preserved because (despite DeLeon's apparent knowledge that jurors were sleeping during the trial) he failed to lodge an objection or make a motion for mistrial during the trial. The State explains that DeLeon's decision to simply notify the court, off-the-record, of his concern was insufficient to preserve the issue for appeal.
In Wheaton, a juror approached defense counsel, after voir dire, and asked how she could be excused from the jury. Defense counsel instructed the juror to speak with the judge, and defense counsel reported the conversation to the court. During orientation, the court had instructed the jurors to contact the bailiff if they had a problem; the juror never contacted the bailiff or the judge. Although defense counsel never objected to the juror remaining on the jury, after the jury rendered a verdict, the defendant contended, in a motion for new trial, that the juror's behavior deprived her of the right to a fair and impartial jury.
Our Supreme Court explained:
“In Kansas, a rule has been adopted that where alleged juror misconduct claimed as prejudicial is known by the party or his counsel before the verdict is rendered, and no objection is made nor is the matter brought to the court's attention, the party cannot later assert the misconduct as grounds for a new trial. [Citations omitted.]” (Emphasis added.) 240 Kan. at 354.
According to the court, such a rule is appropriate because the trial court can either remedy the situation or declare a mistrial, “ ‘without wasting the time and expense required to complete the trial,’ “ if the alleged misconduct is brought to the court's attention in a timely fashion. 240 Kan. at 354. Moreover, “ ‘[a] party is not permitted to remain silent in the face of known error, gamble on the verdict, and show his hole card only if he loses.’ [Citation omitted.]” 240 Kan. at 354.
The Supreme Court then held that Wheaton failed to preserve the issue for appeal:
“Here, all defense counsel did was inform the trial court of her brief conversation with the juror. When informing the trial court of the conversation, defense counsel never objected or argued that the juror could be inattentive, prejudiced, or biased due to her inquiry. During the trial, defense counsel never objected to the juror remaining on the jury, nor did she inquire of the trial court whether it had questioned the juror. After the verdict was rendered, in a motion for a new trial, defense counsel argued the juror should have been questioned by the court. Here, a failure to object to the court's failure to question the juror forecloses the defendant's right to appeal on this issue. [Citation omitted.]” 240 Kan. at 354.
On the other hand, in State v. Kirby, 272 Kan. 1170, 1197, 39 P.3d 1 (2002), our Supreme Court refused to apply the contemporaneous objection rule to an allegation of juror misconduct on appeal. Similar to DeLeon, Kirby brought an allegation of sleeping jurors to the trial court's attention during a bench conference, but it appears Kirby did not formally object or file a motion for mistrial. Following this discussion, the district court kept a “ ‘fairly close eye on the jurors.’ “ 272 Kan. at 1197. Kirby filed a motion for new trial following the rendering of the verdict, which the trial court denied. In its ruling, the trial judge explained that other than a juror who tended to “ ‘close his eyes as he was listening,’ “ he only noticed one instance when an individual juror may have nodded off for a moment, and the trial judge noted the court took “ ‘appropriate action.’ “ 272 Kan. at 1197.
On appeal, the State argued that Kirby failed to preserve this issue for appeal because he did not lodge a contemporaneous objection at trial. Our Supreme Court found that application of the contemporaneous objection rule was inappropriate: “While the State would be correct in regard to the admissibility of evidence, such is not the case when the issue is juror misconduct.” 272 Kan. at 1197.
Under the unique circumstances of the present case, we conclude that defense counsel's expression of concern to the trial court and the prosecutor regarding sleeping jurors was the functional equivalent of stating an objection. By alerting the trial court, defense counsel afforded the court the opportunity to monitor the situation and correct it should the court observe such conduct. In fact, at the hearing on DeLeon's posttrial motion, defense counsel was confident of the trial judge's attentiveness regarding this matter: “And [I] advised you that I thought that this was occurring early on in the trial. You advised you would watch out for that, which I have no doubt to believe that you were watching.” As a result, we will address the merits of this issue.
DeLeon asserts that “[t]he record supports a finding of jury misconduct” because Juror E.W. testified that she observed a juror “ ‘sleeping’ “ and the lights in the courtroom were dimmed or shut down while the district court played the DVD recordings of various police interviews. In response, the State argues the record shows only a momentary lapse in attentiveness by a single juror, which does not amount to juror misconduct as explained by our Supreme Court in Kirby.
The facts of this case are very similar to those presented in Kirby. After rejecting the State's contemporaneous objection argument, our Supreme Court noted that Kirby cited State v. Hayes, 270 Kan. 535, 17 P.3d 317 (2001), “to support his argument that the Constitution requires that a criminal defendant not be tried by a juror who cannot comprehend testimony.” Kirby, 272 Kan. at 1197. The court went on to explain that in Hayes, the Kansas Supreme Court reversed a denial of the defendant's motion for a mistrial because a “juror specifically stated that he could not hear any of the defendant's testimony, and the trial court failed to cure the error by performing a ‘readback’ of testimony. [Citation omitted.]” 272 Kan. at 1197. The court then distinguished Hayes:
“Here, there was no statement by the juror that he did not hear testimony. The trial court was aware of the juror's tendency to close his eyes as he listened, kept an eye on the juror, and took a recess when it appeared that the juror was dozing off. Unlike the juror in Hayes who heard no part of the defendant's testimony, the trial court characterized the length of time the juror dozed here as momentary and the judge did not observe any further dozing incidents following the recess.” Kirby, 272 Kan. at 1197–98.
Accordingly, the Supreme Court found the trial court did not abuse its discretion when it denied Kirby's motion for new trial.
A panel of this court subsequently applied Kirby to an allegation of a sleeping juror in State v. Hobby, Nos. 92,399, 92,400, 2005 WL 3527000, at *4–5 (Kan.App.2005) (unpublished opinion), rev, denied 281 Kan. 1380 (2006). In Hobby, the defendant filed a motion for new trial based upon juror misconduct after the jury foreperson informed “defense counsel ‘that a member of the jury fell asleep during testimony at the trial.’ “ 2005 WL 3527000, at *4. As characterized by the foreperson, “ ‘during the trial one of the jurors fell asleep as testimony was presented’ and ‘[t]hat I woke the juror by slightly jarring her chair with my foot.’ “ 2005 WL 3527000, at *4. The trial court denied the motion because the matter was not brought to the court's attention during trial and the court never observed the jurors sleeping “despite looking at the jurors on a regular basis.” 2005 WL 3527000, at *4.
Relying upon Kirby, the panel found that the district court did not abuse its discretion when it denied Hobby's motion for new trial. The panel explained:
“There is nothing to suggest the juror's dozing was anything more than momentary. The trial court kept an eye on the jurors and did not see the juror dozing, and the affidavit stated the foreperson was able to wake the juror simply by slightly jarring her chair. Most importantly, however, there was no allegation that the juror was not knowledgeable about the case or was unable to participate in deliberation. Hence, Hobby's assertion that he was denied a jury of 12 people is without merit.” 2005 WL 3527000, at *5.
Similar to Kirby and Hobby, in the present case there is no definitive evidence that a juror slept during DeLeon's trial. The district judge explained that he kept “a fairly close eye on the jury” and he did not observe anyone sleeping. The district judge acknowledged that one of the jurors closed his eyes on a couple of occasions, but this individual's head did not nod, he remained in an upright position, and his eyes only remained closed for “a period of three to five, six seconds.” Additionally, Deputy Bogner testified that he watched the jury throughout the trial, and he only witnessed “jurors nodding off with their heads down or back” for no more than “[a] couple [of] seconds[,][t]hree seconds,” behavior he characterized as “normal at any jury trial.” With regard to Juror E.W.'s testimony, she explained that she thought she saw a juror sleeping because “[h]is head—his eyes were closed and his head was [facing] downward.” However, E.W. acknowledged that the juror's eyes could have been closed “for less than a minute, or [a] minute, or two [minutes].” E.W. also admitted that she told a detective during an interview about this incident that she “simply glanced over there on one or two occasions and saw [this particular juror] with his eyes closed.” E .W. further stated that it was possible the juror simply had his eyes closed because he was “drowsy” and was not actually sleeping.
We conclude, DeLeon has failed to show anything more than an occasional and brief lapse in attentiveness by one juror during the trial. Given this meager evidentiary support, DeLeon's claim of constitutional error is without merit. The district court did not abuse its discretion in overruling the motion for new trial.
Jury Instructions
For his second issue, DeLeon contends the trial court committed reversible error by failing to give a multiple-counts instruction and a limiting instruction under K.S.A. 60–455.
As noted earlier, the State charged DeLeon with one count of aggravated robbery and one count of criminal possession of a firearm. The district court provided the jury with a separate instruction for each count articulating the elements necessary to establish DeLeon's guilt for each crime. The verdict form indicated that DeLeon was charged with two separate counts, and for each count, the jury was provided the option of finding DeLeon guilty or not guilty of the specified crime.
Prior to trial, DeLeon filed a stipulation of prior felony conviction. This stipulation provided that DeLeon “hereby stipulates to a prior felony conviction ... and that based upon said stipulation the State would not have to prove that element of Count 2 Criminal Possession of a Firearm ... but the State shall not mention to the jury the actual felony conviction itself.” Consequently, the trial court provided the jury with Instruction No. 10:
“The following fact has been agreed to by the parties and is to be considered by you as true:
1. That the defendant has been convicted of a felony within five years preceding such possession of a firearm.”
Importantly, this instruction immediately followed Instruction No. 9 which was the elements instruction pertaining to the crime of criminal possession of a firearm. That instruction included the claim that “the defendant within five years preceding such possession had been convicted of a felony.”
As DeLeon contends, the trial court did not give a multiple-counts instruction or a limiting instruction regarding the stipulation. DeLeon candidly concedes, however, that he did not request either of these instructions, and he did not object to their omission.
When reviewing a district court's giving or failure to give a particular instruction, appellate courts apply a clearly erroneous standard of review if the defendant “ ‘neither suggested an instruction nor objected to its omission. [Citation omitted.]’ “ State v. Bailey, 292 Kan. 449, 455, 255 P.3d 19 (2011); see K.S .A. 22–3414(3). “ ‘An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” Bailey, 292 Kan. at 455. Multiple–Counts Instruction
DeLeon argues that the trial court's failure to give a multiple-counts instruction was clearly erroneous. Specifically, DeLeon asserts that without this instruction, the jury was allowed to consider the felony conviction stipulation as evidence of guilt for both crimes because “[t]he jury was not told that each crime charged was separate and distinct and to decide each separately, uninfluenced by their decision on the other charge.” The State contends that although the district court erred by failing to give a multiple-counts instruction, this error was not clearly erroneous, as the jury was not misled into believing that a finding of guilt on one count mandated a finding of guilt on the other.
The standard multiple-counts instruction, which should be given when multiple counts are charged, is PIK Crim.3d 68.07:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” PIK Crim.3d 68.07.
A district court's “failure to give the multiple-count instruction can be reversible error if the jury is misled into believing that a finding of guilty on one count mandates a finding of guilty on the others. [Citation omitted.]” State v. Gould, 271 Kan. 394, 401, 23 P.3d 801 (2001).
DeLeon does not point to any cases where an appellate court has found that the omission of a multiple-counts instruction warranted reversal. Moreover, it appears that Kansas courts addressing this issue have generally found the trial court's failure to provide a multiple-counts instruction did not constitute reversible error. State v. Hall, No. 99,285, 2009 WL 1858235, at *5 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1098 (2010); State v. Taylor, No. 99,426, 2009 WL 929088, at *2 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1285 (2010).
One exception is State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007). In Wade, the defendant was charged with aggravated burglary and first-degree murder. Our Supreme Court found that “[t]he manner in which the State charged the crimes and the liberal use of incorporation by reference in the various ‘separate’ instructions [on each count] presented a case in which a multiple counts instruction was highly desirable, if not absolutely necessary,” especially since “the record suggest[ed] that the jury was confused by the interplay between the separate crimes and needed direction.” 284 Kan. at 545.
As the State observes, however, DeLeon fails to cite anything in the record to indicate that the trial court's failure to include a multiple-counts instruction misled the jury into believing a guilty verdict on one count required a guilty verdict on the other. Indeed, DeLeon simply asserts that the omission of this instruction gave the jury permission to consider his felony conviction stipulation as propensity evidence regarding the aggravated robbery charge. This speculative possibility does not necessarily equate to confusion regarding the separate nature of the two charges.
Several factors convince us there was no clear error in the omission of the multiple-counts instruction. First, the trial court gave the jury a separate instruction for each count, which listed the necessary elements the State needed to prove to establish each charge, and neither of these instructions referenced or incorporated the other. Second, the wording of the stipulation and the second claim of the elements instruction for criminal possession of a weapon was essentially identical. This suggested the particular relevance between the stipulation and the elements instruction relating to criminal possession of a weapon. Third, the order of Instructions Nos. 9 and 10 correlated the stipulation to the particular crime of criminal possession of a firearm. The stipulation (Instruction No. 10) immediately followed this elements instruction (Instruction No. 9). In this way, the order of the two instructions alerted the jury that the stipulation pertained to that particular crime. Fourth, the verdict form clearly indicated that DeLeon was charged with two separate counts. Finally, as the State points out, DeLeon does not claim the State argued that a finding of guilt on one of the charges required a finding of guilt on the other charge. In fact, the State focused entirely on the aggravated robbery charge during closing arguments; it never mentioned the stipulation or the charge of criminal possession of a firearm.
Although it was error for the trial court not to give a multiple-counts instruction, we are convinced there is no real possibility the jury would have rendered a different verdict had the instruction been provided. The trial court's failure to give a multiple-counts instruction was not clearly erroneous. Limiting Instruction
DeLeon next contends the trial court admitted prior-bad-acts evidence, under K.S.A. 60–455, when it accepted his stipulation, and as a result, the failure to provide a limiting instruction notifying the jury of the specific purpose for the admission of this evidence was clear error.
Under K.S.A. 60–455, “evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.” However, such evidence is admissible if it is “relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60–455.
In order to admit evidence under K.S.A. 60–455, a district court must “determine that proposed evidence is relevant to prove a material fact, is disputed, and has probative value that outweighs its potential for producing undue prejudice.” State v. Jones, 290 Kan. 373, 383, 228 P.3d 394 (2010). If the district court chooses to admit prior-bad-acts evidence, it must give a limiting instruction that informs the jury that it should only consider this evidence for the specific purpose for which it was admitted. 290 Kan. at 383. According to our Supreme Court, “ ‘[t]hese safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime.’ [Citation omitted.]” State v. Richmond, 289 Kan. 419, 436, 212 P.3d 165 (2009). However, “[t]he admission of K .S.A. 60–455 evidence without explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or a prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. It may be harmless under K.S.A. 60–261.” State v. Prine, 287 Kan. 713, Syl. ¶ 3, 200 P.3d 1(2009).
The State contends that a limiting instruction was not required in this case because DeLeon introduced the stipulation regarding his prior felony conviction into evidence and, as such, the stipulation falls outside the ambit of K.S.A. 60–455. In this regard, our Supreme Court has held that defendants who introduce K.S.A. 60–455 evidence waive the protections of the statute. See State v. Greene, 214 Kan. 78, 82, 519 P.2d 651 (1974) (“K.S.A. 60–455 attempts to protect defendants from evidence of past crimes introduced by the prosecution. The defendant's own admissions on direct examination waived the protection of that statute. [Citations omitted.]”) disapproved on other grounds by Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978); State v. Ralls, 213 Kan. 249, 255–56, 515 P.2d 1205 (1973) (defendant waived protections of K.S.A. 60–455 when he admitted prior-bad-acts evidence during his direct examination).
In the present case, however, evidence of DeLeon's prior conviction was actually admitted by the State without defense objection in the State's case-in-chief The admission of the journal entry of conviction was not disclosed to the jury but provided the evidentiary basis for the agreed-upon stipulation. Under these circumstances, we are persuaded that a limiting instruction should have been given to the jury. This instruction should have informed the jury that the evidence stipulation was offered to prove the second claim in the elements instruction pertaining to criminal possession of a firearm.
The trial court's failure to give a limiting instruction, however, does not automatically require reversal. On the contrary, due to DeLeon's failure to request the instruction or object to its omission, the failure to give the instruction is only reversible if the error was clearly erroneous. See K.S.A. 22–3414(3). DeLeon does not address whether the district court's failure was clearly erroneous; instead, he merely asserts that an error occurred because without a limiting instruction, the jury was allowed to consider the stipulation for propensity purposes. As a general rule, a point raised incidentally in a brief and not argued therein is deemed waived and abandoned. State v. Gomez, 290 Kan. 858, 866, 235 P.3d 1203 (2010).
With regard to the merits, however, we conclude the trial court's failure to provide a limiting instruction was not clearly erroneous. As noted earlier, the wording and placement of the stipulation and the elements instruction for criminal possession of a firearm clearly suggested the specific relationship between that particular prior crime and the particular crime charged. Moreover, no prejudicial details of the prior felony conviction were provided by either the trial court or the State. We are convinced the impact of the trial court's failure to provide a limiting instruction had no effect on the outcome of the trial. The trial court's failure to give a limiting instruction was not clearly erroneous because there does not appear to be any real possibility that the jury would have rendered a different verdict had the district court given this instruction.
Denial of Motion for Judgment of Acquittal
DeLeon contends the district court erred when it denied his motion for judgment of acquittal because the State presented insufficient evidence to establish his guilt. In particular, DeLeon complains that “the State relied upon the testimony of witnesses with suspect credibility and the State provided no physical evidence to corroborate the finger-pointing of its suspect witnesses.” The State disagrees, emphasizing that it is improper for a reviewing court to invade the province of the jury by reweighing the evidence or reassessing witness credibility.
The district court held a hearing to consider DeLeon's motion for judgment of acquittal. At the conclusion of the hearing, the district court denied the motion because “reasonable minds could find guilt beyond a reasonable doubt on the theory of aiding and abetting and aggravated robbery.” The district court explained that it is not appropriate for a district court to invade the province of the jury by reweighing the evidence or reevaluating the credibility of the witnesses.
Appellate courts review the denial of a motion for judgment of acquittal by reviewing the sufficiency of the evidence to support the conviction(s). State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011). Thus, an appellate court will affirm the denial of a motion for a judgment of acquittal if “ ‘ “after reviewing all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact finder could have found the defendant guilty beyond a reasonable doubt.’ “ [Citations omitted.]” 291 Kan. at 670. When making a sufficiency of the evidence determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
DeLeon's argument is solely focused on the “witness credibility” of the State's witnesses Sandoval and Martinez. In this regard, we have carefully considered the entire trial testimony and evidence with particular attention to these two witnesses' testimony.
We conclude the evidence was clearly sufficient to convince a rational fact-finder that DeLeon was guilty beyond a reasonable doubt. Sandoval, Martinez, and Dyer all testified that not only was DeLeon involved in the commission of the aggravated robbery, he possessed the firearm that was pointed at the victim. Although the State based its case against DeLeon upon the testimony of some accomplice witnesses, our Supreme Court has consistently held that uncorroborated accomplice testimony is sufficient to support a conviction. See, e.g., State v. Dieterman, 271 Kan. 975, 992, 29 P.3d 411 (2001). Moreover, “a conviction of even the gravest offense “ ‘ “can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.’ “ [Citations omitted.]” McCaslin, 291 Kan. at 710.
We note that the accomplice witnesses, at one time or another, made inconsistent statements about the details of the crime, including who was involved and who possessed the firearm. Moreover, Sandoval and Martinez both agreed to testify in exchange for a reduction in the charges against them. However, the jury was fully aware of the inconsistent statements and the plea agreements. The jury viewed the DVD recordings of the police interviews of Sandoval, Martinez, Dyer, and Marrufo, and defense counsel extensively questioned Sandoval, Martinez, and Marrufo about their prior inconsistent statements and bias. Furthermore, the district court specifically admonished the jury that it “should consider with caution the testimony of an accomplice.”
The jury's verdicts indicate that it found the testimony of DeLeon's alleged accomplices credible and compelling despite any prior dishonesty or inconsistency, and it is not appropriate for this court to reweigh the evidence or question the trier of fact's credibility determinations on appeal. See McCaslin, 291 Kan. at 710. Such decisions are solely within the province of the jury, and appellate courts will not overturn a jury's verdict simply because the evidence failed to exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
Accordingly, when viewed in the light most favorable to the prosecution, there was substantial competent evidence upon which a rational factfinder could have found DeLeon guilty of aggravated robbery” and criminal possession of a firearm. The district court did not err when it denied DeLeon's motion for judgment of acquittal.
Use of Criminal History at Sentencing
For his final issue on appeal, DeLeon contends the trial court violated his constitutional rights based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, DeLeon argues the trial court erroneously used his criminal history to enhance his sentences without first requiring that his prior criminal convictions be presented to the jury and proved beyond a reasonable doubt.
DeLeon did not raise this argument before the trial court. Generally, alleged constitutional violations asserted for the first time on appeal are not properly preserved for appellate review. Gould, 271 Kan. at 404. Our Supreme Court, however, has permitted an exception to this general rule in cases of alleged violations of Apprendi raised for the first time on appeal. State v. Conley, 270 Kan. 18, 30–31, 11 P.3d 1147 (2000), cert. denied532 U.S. 932 (2001). Our review of this issue is a question of law subject to de novo review. State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).
As DeLeon acknowledges, his legal contention was previously decided and rejected by our Supreme Court in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). We are unaware of any indication that our Supreme Court is considering a departure from its holding in Ivory . See McCaslin, 291 Kan. at 731–32 (affirming Ivory ). This issue is without merit.
The convictions and sentences are affirmed.