Opinion
111,148.
04-03-2015
STATE of Kansas, Appellee, v. Traylen JONES, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Traylen Jones appeals his convictions and sentences after a jury found him guilty of one count of burglary and two counts of theft. Jones contends and the State concedes that his two theft convictions are multiplicitous. The parties are correct, and we reverse the second theft conviction and remand to the district court to vacate that sentence. Jones also contends that the prosecutor committed misconduct during closing arguments. Finally, Jones claims that the district court erred in failing to require that his criminal history be proven to a jury beyond a reasonable doubt. We find no merit in those latter arguments and affirm the remaining convictions and sentences.
Factual and Procedural Background
We summarize the evidence from Jones' trial to give context to his appellate claims of multiplicity and prosecutorial misconduct.
On July 8, 2012, Shirley Biggins' home was burglarized. She and one of her teenage daughters, Nicole, left their home at 11 a.m. to run a few errands. They returned 20 to 25 minutes later. When Shirley opened the door to her attached garage she saw two men run out of her house, through the garage, and out the back door of the garage into the back yard. Shirley described the men as black, tall and thin, and about 18 years old. She did not get a good look at their faces. One wore a white shirt, the other a red shirt. One of the men was carrying a red object.
Shirley put her car in park and told Nicole to call 911. Shirley went around the garage to the back yard. It appeared to her that the men must have already climbed the fence because they were gone. The police arrived quickly. Shirley, Nicole, and officers went through the house. Shirley said that things were all over the place. They saw that the Xbox from the basement had been disconnected and it, a Guitar Hero guitar-shaped game controller and some video games were on a couch in the living room. Some jewelry boxes from the Nicole's room on the main floor were also on the couch. The burglars had taken some of Nicole's jewelry and her cell phone. They also took a red gym bag. When Shirley looked for her red Canon Powershot digital camera to take pictures of the break-in damage, she realized it was also missing.
Wichita Police Officer Aaron Howard investigated the point of entry. He saw that the deadbolt in the door from the backyard into the garage was still in the locked position, but the inside part of the doorframe was knocked completely off. He could see a distinctive shoe print on the outer side of that door. Shirley told him that they had locked the deadbolt in that door but they had not locked the door from the garage to the house.
Shirley alerted the officers to an unoccupied, unfamiliar car parked on the street near her house. Officer Howard ran the license number on the vehicle. He learned it was registered to Desirae Singleton, who lived a short distance away. As Officer Howard left the residence to return to the station he told Shirley that she should call the police if she saw anyone enter the car. About 5 minutes later, or at 1:55 p.m., Officer Howard received information that someone was at the vehicle. Other officers were notified. They went to Singleton's address and stopped the vehicle as it pulled into the lot. Officer Howard arrived, approached the car, and spoke to its driver. She identified herself as Desirae Singleton. Singleton told Officer Howard that she had loaned her car to her boyfriend, Christopher Lovelette. Singleton, according to Officer Howard, said that Lovelette told her she needed to go get her car because the police were looking for him.
The officers told Singleton they were investigating a burglary. She gave them consent to search her apartment. The officers found Lovelette and Jones, who initially gave them a false name, inside. The officers located a green pair of not yet chilled Nike shoes in the crisper in the refrigerator. Singleton told Howard that Lovelette had been wearing those shoes. Officers later determined that the tread on those shoes matched the print on Shirley's door. They recovered Nicole's cell phone. Jones, who was wearing boxers but no shorts or pants, said he was uncomfortable in the presence of a female officer. He asked her to get his sweat pants from a downstairs room. As the officer returned with the pants, the phone fell out of one of the pants' pockets. They also recovered Shirley's red camera, some of Nicole's jewelry, and Shirley's red gym bag, the red object the men were carrying when they ran from her home. Officer Howard collected a red shirt from the apartment. He said Jones asked him: “Hey, what are you doing with my boy's shirt?”
The officers took Jones and Lovelette into custody. They, then, that same afternoon, returned the recovered property to the Bigginses. The camera and cell phone yielded further evidence incriminating Jones and Lovelette. Shirley checked the camera to see if her photos were still saved. They were, but there were also photos and a video that were not there when the camera was taken. The video showed Singleton, Singleton's child, and Jones. Jones was wearing red shorts and a white shirt. He was playing with Nicole's cell phone. Nicole testified that when the officers had returned her phone she found that all of her contacts had been erased and replaced by someone else's contacts and that someone had tried to use her phone to send some text messages.
A short time later Singleton contacted the police to let them know she had found more property that did not belong to her. The officers returned to her apartment, where they recovered the remainder of Nicole's jewelry from a pair of red shorts like those worn by Jones in the video.
Singleton testified that Jones had spent the night before the burglary at her place. That morning, Lovelette borrowed her car, left with Jones, then returned with him. They did not return, though, with her car.
Lovelette was the prosecution's last witness. During a break in Jones' trial Lovelette had pled guilty to the same burglary and theft charges Jones was facing. In exchange for his plea and his truthful testimony at Jones' trial, the State agreed to recommend that Lovelette be granted a dispositional departure to probation. Lovelette testified that he and Jones were driving around and needed some money. He saw a woman leaving her house, so he parked down the street from the house and told Jones to wait in the car. He looked through the windows and determined that no one appeared to be home. While wearing the green Nike shoes subsequently found in the crisper, he kicked in the back door to the garage and then entered the house. Lovelette testified that he gathered things on the couch, and then waved for Jones to join him. He described his version of Jones' involvement in the burglary: “I told him to wait in the car and I'm going to come get him, I'll wave him in, and come get the stuff with me, because I had the stuff on the couch and I couldn't carry it all by myself, so I went and waved him in to come help me.” He claimed that, as Jones entered the garage, the “lady” came home, and he and Jones ran off. They went back to Singleton's residence. Lovelette said he gave Jones the cell phone for helping out. When asked about the jewelry, Lovelette said: “I don't even remember what I did with the jewelry for real.”
On cross-examination, Jones' counsel attempted to get some help from Lovelette. Counsel asked: “Isn't it true, Mr. Lovelette, when you returned to Desirae Singleton's apartment, Tray was there already, wasn't he?” Lovelette replied: “You said what?” Counsel tried again: “When you returned—when you ran, Tray was at Desirae's apartment already, wasn't he?” Lovelette said: “No.”
After Lovelette's testimony, the State rested. Jones did not present any evidence. The jury returned the next day for instructions, closing arguments, and deliberation. The district court included an aiding and abetting instruction without objection. The jury found Jones guilty of the burglary and two counts of theft, as charged.
On May 2, 2013, the district court sentenced Jones to a total of 31 months' imprisonment. Jones timely filed a notice of appeal.
Analysis
Are Jones' Theft Convictions Multiplicitous?
Jones was convicted of a count of theft for taking Shirley's property and another count for taking Nicole's property. On appeal, Jones contends that his two theft convictions are multiplicitous and only one theft conviction can stand.
Multiplicity is the charging of a single criminal offense in multiple counts of a charging document. Multiplicitous convictions violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because they result in multiple punishments for a single offense. State v. Weber, 297 Kan. 805, 808, 304 P.3d 1262 (2013). The State concedes that the two theft convictions are multiplicitous and one conviction should be reversed.
Jones should have raised this issue in the district court. He did not. We have a general rule that issues not raised before the district court cannot be raised on appeal. Jones asks that we apply recognized exceptions to that rule and review this issue because it involves only a question of law arising on proved or admitted facts, it is finally determinative of an issue in the case, and consideration of the issue is necessary to serve the ends of justice and prevent the denial of fundamental rights. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
This issue does involve only a question of law, over which we have unlimited review. Our Supreme Court has previously considered double jeopardy violation claims raised for the first time on appeal when the issue has been the multiplicity of convictions. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). We choose to address the merits of Jones' claim.
As each party acknowledges, our Supreme Court has recently analyzed the application of multiplicity principles to facts similar to those here, in State v. Hood, 297 Kan. 388, 395–96, 300 P.3d 1083 (2013). We refer to Hood for its comprehensive treatment of this issue and simply apply its analysis to our facts. There and here the accused took personal property owned by different people. The takings occurred at the same time and at the same location, with no event intervening or fresh impulse arising between the takings. The takings there and here constituted one criminal act, and “the unit of prosecution for theft[, for double jeopardy purposes,] is the act of unlawfully taking property, unaffected by the number of persons or entities possessing an ownership interest in the stolen property.” 297 Kan. 388, Syl. ¶ 7. Under the applicable statute in Hood (K.S.A.21–3701 ) and in this case (K.S.A.2012 Supp. 21–5801 ), only one unit of prosecution for the offense of theft was present. The conviction here, as in Hood, of more than one count of theft results in multiplicity that violates the principles of double jeopardy.
Jones' two theft convictions meet the test for constitutionally impermissible multiplicity. We reverse the second theft conviction, sentenced as Count 3, and remand to the district court to vacate that sentence.
Did The Prosecutor Commit Reversible Misconduct During Closing Arguments?
Jones argues the prosecutor committed reversible misconduct during closing arguments. He asserts that the prosecutor improperly shifted the State's burden of proof to him, misstated the evidence, and made an inflammatory comment. Jones did not object to the comments he complains about on appeal. However, a contemporaneous objection in the trial court is not a prerequisite for our review of a claim of prosecutorial misconduct based on comments made during closing argument. See Anderson, 294 Kan. at 461.
Our review of claims of prosecutorial misconduct during closing argument can involve a two-step analysis. First, we determine whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If we find misconduct, under the second step we determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
In the second step of the two-step analysis, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) have been met. Williams, 299 Kan. at 540–41.
Jones points to three comments he alleges constitute prosecutorial misconduct.
Shifting of the State's Burden of Proof to Jones
First, Jones argues the prosecutor improperly shifted its burden of proof with the following comments made in the rebuttal portion of the State's closing argument.
“Now remember, the defense says to you: Well, there's no evidence that it was Traylen Jones that went into the house with Christopher Lovelette. Ladies and gentlemen, is there evidence that it was anyone else? ...
....
“Now the State is [the] only one that has got a burden, but that doesn't mean that we go through random speculation as to: Well, maybe this could have happened. If there's no evidence, then you can't go outside of what was presented in these four walls.” (Emphasis added.)
Jones argues that, by asking if there was “evidence that it was anyone else,” the State implied that Jones had an affirmative burden to produce evidence of his innocence. Jones relies on State v. Tosh, 278 Kan. 83, 92, 91 P.3d 1204 (2004).
In Tosh, the court addressed a facially similar question to the one at issue here. The Tosh prosecutor asked in closing argument: “[I]s there any evidence that it didn't happen? Is there any evidence that the things she told you didn't happen?” 278 Kan. at 92. In Tosh the State alleged that Tosh had sexually abused his 16–year–old daughter. In this “she said, he said” type of case, only the victim and the perpetrator are present when the crimes occur. The daughter testified to Tosh's abuse. Tosh denied committing the abuse. He stated that he did not recall giving the confession to a detective that the State had introduced into evidence. He claimed that, at the relevant times, he was taking 180 to 280 tablets of over the counter ephedrine each a day.
The Tosh court held that the State's questions were impermissible attempts to shift the State's burden, stating briefly: “We consider these comments improper attempts to shift the burden of proof to Tosh. We agree that they must be considered in context, but here the context compounds the error rather than cures it.” 278 Kan. at 92. The compounding context the court referred to included other instances of prosecutorial misconduct: First, the State also argued that, by Tosh taking the case to trial, he raped his daughter twice, once physically and, then, by requiring her to undergo cross-examination; second, the State questioned Tosh's motive for taking the case to trial when he had confessed to the crimes. Thus, the context corroborated that the prosecutor, in asking the challenged questions, intended to imply that Tosh had a burden to disprove his daughter's claims. We are not as convinced as Jones is that the Tosh court announced a per se rule prohibiting a prosecutor from asking whether evidence that supports the defense theory exists or pointing out that such supporting evidence is absent.
The State contends this case is less similar to Tosh than it is to State v. Stone, 291 Kan. 13, 16, 237 P.3d 1229 (2010), where the prosecutor argued that the defendant had “ ‘two huge obstacles he has to overcome to present any kind of a credible defense.’ “ The “obstacles” to “overcome” phrase could imply that the defendant has some burden of proof. In Stone the defendant was charged with indecent liberties with a child. Stone apparently generally denied the charges. The obstacles the State referred to were the credibility of the State's complaining witness and Stone's confession. The Stone court acknowledged that a prosecutor has considerable latitude to comment on the weakness of an asserted defense. See 291 Kan. at 19. The court noted that the prosecutor referred to the district court's instruction to the jury that the State had the burden of proof. The court concluded that the prosecutor's argument was permissible and stood “in contrast to the argumentative questions posed to the jury by the prosecutor in Tosh, implying that it was the defendant's burden to produce evidence to disprove the charges.” 291 Kan. at 19.
The Stone court cited with favor State v. Burden, 30 Kan.App.2d 690, 691, 46 P.3d 570 (2002), rev'd on other grounds 275 Kan. 934, 69 P.3d 1120 (2003). Like Tosh and Stone, Burden was charged with a sex crime. The prosecutor argued to the jury that “[T]he most overwhelming thing that the defense cannot overcome is the physical evidence that corroborates [the victim's] initial statements.” 30 Kan.App.2d at 703. Again, use of the “overcome” phrase could imply that Burden had some burden of proof. The Burden court described the statement as “inartful” but, because the jury had been properly instructed on the burden of proof, the court concluded that the statement was within the “considerable latitude granted to prosecutors to comment on the weakness of defenses.” 30 Kan.App.2d at 703.
In State v. Williams, 299 Kan 911, 329 P.3d 400 (2014), our Supreme Court recently referred to holdings in several cases where that court had held that the prosecutor had not attempted to shift the burden of proof. That court stated, and cited, as follows:
“Likewise, more generally, this court has held a prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding holes in the State's case. See, e.g., State v. Wilson, 295 Kan. 605, 623–25, 289 P.3d 1082 (2012) (holding prosecutor's arguments that defendant had no explanation for his DNA found near crime scene did not improperly shift burden of proof; rather, it was comment on efficacy of defense and pointed jurors to lack of evidence supporting defendant's version of events); State v. Cosby, 293 Kan. 121, 135–37, 262 P.3d 285 (2011) (finding prosecutor's statements asking jury if it had heard any evidence that suggested witness' testimony was wrong did not improperly shift burden of proof because prosecutor was only commenting generally on defendant's failure to rebut witness' testimony and not commenting on defendant's failure to testify); [State v. ] Duong, 292 Kan. [824] at 832–33, 257 P.3d 309 (holding prosecutor's arguments questioning defendant's failure to present evidence of misidentification did not improperly shift burden of proof because prosecutor did not call upon defense to disprove crime's occurrence but rather pointed out that evidence supporting defense theory was thin).” 299 Kan. at 940.
Here the district court properly instructed the jury that the State had “the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.” The judge also told the jury: “If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty.”
The prosecutor acknowledged this burden in closing argument. She stated that “[i]n order to prove its case against Traylen Jones, the State has to prove the four elements of burglary beyond a reasonable doubt.” Later she said: “The question is did the State present enough evidence to eliminate reasonable doubt in this case.”
Although the prosecutor's challenged words here, standing alone, may appear similar to those in Tosh, we must review a prosecutor's challenged remarks in their full context. That is because “reading [such] comments in isolation can frequently be misleading as to the message that the prosecutor was conveying to the jury.” See State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011). Here, we first note that the defense argued in closing that the State had accused the wrong man. Defense counsel stated: “Ladies and gentlemen, he [Jones] didn't do it.” Counsel contended: “My client is guilty of one thing, being in the wrong place at the wrong time. That was Desirae Singleton's apartment.” Counsel pointed out that there was no DNA or fingerprint evidence linking Jones to the actual burglary. Counsel summed up her argument, saying: “There is absolutely no evidence that links Mr. Jones to that residence, other than him being at Desirae Singleton's apartment when the police came and he had a cell phone that Christopher Lovelette gave him. Having stolen property does not a burglary make.”
In the State's rebuttal closing the prosecutor summarized much of the circumstantial evidence against Jones and, then, pointed to the direct testimony from Lovelette that Jones was, in fact, the other man with him at the Biggins' residence. The State, responding to the defense claims of lack of evidence that the burglar with Lovelette was Jones, then asked the challenged question. We recognize that a prosecutor's improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting an argument made by defense counsel. A defendant's provocative closing argument can no longer open the door to make prosecutorial misconduct legally tolerable. State v. Marshall, 294 Kan. 850, 858–61, 281 P.3d 1112 (2012). Nevertheless, the prosecutor's comment must constitute misconduct before it can be deemed prejudicial.
We are persuaded that the Tosh holding does not control the outcome on this issue. The challenged question here followed the defense argument that the State was prosecuting an innocent man and that all Jones did was possess a stolen cell phone. The question here, “is there evidence that it was anyone else,” was simply a request that the jurors consider whether there was any evidence to support Jones' claim that he was not the person with Lovelette who committed the burglary. This is not burden shifting. It fairly directed the jurors to the evidence and asked them to consider the evidentiary viability of Jones' denial. The prosecutor was only commenting generally on defendant's failure to rebut the State's witnesses' testimony against him rather than referring to Jones' failure to testify. The prosecutor did not call upon the defense to disprove Jones' involvement in the burglary. Rather, her question simply drew the jurors' attention to the lack of evidence supporting Jones' defense theory.
We conclude that the prosecutor's question “is there evidence that it was anyone else” in this overall argument was fair comment on the substantial evidence that the individual with Lovelette was in fact Jones and the paucity of evidence to support Jones' argument that it was not him. Since the prosecutor did not engage in misconduct in the challenged statement, we need not proceed to the second step of the prosecutorial misconduct analysis. We reject Jones' challenge here.
Jones also claims there was burden shifting in the State's contention: “Now the State is [the] only one that has got a burden, but that doesn't mean that we go through random speculation as to: Well, maybe this could have happened. If there's no evidence, then you can't go outside of what was presented in these four walls.” We are unable to see any burden shifting here. The court instructed the jury regarding its factfinding duty in the following:
“You must decide the case by applying these instructions to the facts as you find them. In your factfinding you should consider and weigh everything admitted into evidence.... You must disregard any testimony or exhibit which I did not admit into evidence.... It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
While the State may have inartfully paraphrased this instruction, we do not find that it in any way supports Jones' claim of burden shifting, which we have found did not occur, or deterred the jury from speculating about the evidence admitted at the trial.
Misstating the Facts
Jones next argues that the prosecutor misstated the facts in evidence. Jones claims the prosecutor erroneously contended that Jones' shoes were found in the refrigerator at Singleton's apartment and that Jones' shoe print was found at the Biggins' residence. The specific passage Jones complains about is this statement by the prosecutor: “But we can also look at Desirae Singleton's testimony and know that it corroborates Lovelette's testimony that the defendant was there, used her car, used her apartment, his shoes are the ones found in the fridge, and his shoe print is the one found at the Biggins'. All corroboration.”
A review of the record reveals that the prosecutor did not misstate the evidence. Jones' appellate counsel misapprehends the meaning of the statement. Singleton actually corroborated Lovelette's testimony, which was that Jones was with Lovelette, Lovelette used her car and apartment, and Lovelette wore the shoes found in the crisper which made the shoe print on the door when Lovelette kicked it open. This comment did not misstate the evidence and was not improper.
Inflaming the Passions of the Jury
Finally, Jones argues that the prosecutor improperly made an argument intended to inflame the passions of the jury. It is improper for a prosecutor to “make comments that serve no purpose other than to inflame the passions and prejudices of the jury.” State v. Stimec, 297 Kan. 126, 128, 298 P.3d 354 (2013). This derives from the fundamental rule that, in closing arguments, prosecutors must confine their comments to matters in evidence. See State v. Richmond, 289 Kan. 419, 440–41, 212 P.3d 165 (2009). Again, though, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence. 289 Kan. at 440–41. A court should allow a prosecutor to exercise wide latitude in the language and manner of presenting a closing argument. A prosecutor may even use “picturesque speech” as long as she does not refer to facts not disclosed by the evidence. See State v. McCaslin, 291 Kan. 697, 722, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014) ; State v. Rodriguez, 269 Kan. 633, 643–45, 8 P.3d 712 (2000).
The challenged comment here arose during the prosecutor's initial part of the closing. The prosecutor was making observations about Lovelette's credibility, or, perhaps, his lack of complete candor. The prosecutor noted: “... you know plans made in hell don't have angels for witnesses.” Jones contends that this comment inflamed the passions of the jury because “it implied that Jones resided in a metaphorical Hell,” which “is commonly conceived as an afterlife destination reserved for evildoers.”
We disagree. This was not a statement that Lovelette, let alone Jones, resided in or was destined for hell. It was a picturesque way to indicate that only the criminals who planned a crime really know what they intended. It is clear from the context that the prosecutor did not make this comment in order to inflame the passions and prejudices of the jury but rather to comment on the credibility of its own witness regarding his and Jones' involvement in the commission of the crime. The prosecutor was pointing out that it was relying, at least in part, on a witness with credibility problems—Lovelette. The prosecutor acknowledged that Lovelette was Jones' friend and that he testified to help himself obtain a favorable plea agreement. The prosecutor recognized that Lovelette may not have been completely forthcoming in his testimony. The closing argument surrounding the challenged comment about Lovelette and his testimony follows:
“Is this a little bit of this guy trying to have his cake and eat it too? Like, I'm going to come forward and I'm going to talk about what I did, and maybe I'll try to mitigate a little bit what my friend did so I don't get him in too much trouble. But the other thing is, you know, plans made in hell don't have angels for witnesses. Have you ever heard that? Who do you expect to know what Traylen Jones knew? Who do you expect to know his intent? How about Christopher Lovelette, the guy that was there during the crime?”
The prosecutor then emphasized the parts of Lovelette's testimony that were corroborated by Singleton's testimony. The prosecutor did not direct this comment at Jones. The prosecutor was implying that Lovelette—the State's own witness—was less than a completely credible angel. This comment was not an improper way for the State to acknowledge the difficulties involved in its use of the testimony of an accomplice to prove its case. The district court had already alerted the jury to such difficulties. The district court instructed the jury that it “should consider with caution the testimony of an accomplice.” The State's colorful comment was not inconsistent with the accomplice instruction, was not inflammatory, and did not constitute misconduct.
Did The District Court Err By Increasing Jones' Sentence Based On His Criminal History Without Proving It Beyond A Reasonable Doubt To A Jury?
Jones also contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, he argues that the district court could not constitutionally consider his criminal history in determining the appropriate sentence unless that history had been proven to a jury beyond a reasonable doubt. Jones concedes that the Kansas Supreme Court has previously decided this issue adversely to his position. He states that he wishes to preserve the claim for federal review. See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
This court is duty bound to follow Kansas Supreme Court precedent unless there is an indication that it is departing from its position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Recently, our Supreme Court declined to depart from its holding in Ivory. See State v. Frierson, 298 Kan. 1005, 1022, 319 P.3d 515 (2014). Applying Ivory, we conclude that the district court could constitutionally consider Jones' criminal history in determining his sentence.
Affirmed in part, reversed in part, and remanded for resentencing.