Opinion
No. 106,095.
2012-05-11
STATE of Kansas, Appellee, v. Kreshauna Nicole JOYNER, Appellant.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., MALONE and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kreshauna Nicole Joyner contends her conviction for identity theft must be reversed because the district court erred by instructing the jury that another trial would be a burden on both sides. Finding this error harmless, we affirm Joyner's conviction. Joyner also contends the district court violated her constitutional rights when it did not require the State to include her prior convictions in its complaint and prove them to a jury beyond a reasonable doubt. Kansas Supreme Court precedent rules to the contrary. Thus, we affirm.
Joyner used Leaha Schmuck's identity to lease an apartment. After this was discovered, the State charged Joyner with one count of identity theft under K.S.A. 21–4018(a). The jury convicted Joyner. The district court sentenced Joyner to a 10–month prison term and 18 months' probation.
Joyner claims the district court committed reversible error because it gave the jury an Allen instruction that included the language “[a]nother trial would be a burden on both sides.” See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Joyner concedes she did not object to this instruction, but argues the district court clearly erred in giving the instruction in light of State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009). The State recognizes that the Kansas Supreme Court in Salts concluded the same language challenged here is erroneous, but argues the error was harmless. See Salts, 288 Kan. at 266.
Here, the district court incorporated language in Jury Instruction 10 used in a prior version of PIK Crim.3d 68.12. Because our Supreme Court has held that the identical language, “[a]nother trial would be a burden on both sides,” is both misleading and inaccurate, we conclude the district court erred in giving an instruction containing the challenged language. See Salts, 288 Kan. at 266–67;State v. Page, 41 Kan.App.2d 584, 586–87, 203 P.3d 1277 (2009). As in Salts, however, the district court here gave the erroneous instruction before jury deliberations, and Joyner did not object to the instruction at trial. See Salts, 288 Kan. at 264–65. Accordingly, this court must reverse only if we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instructional error not occurred. Salts, 288 Kan. at 265–66.
Joyner asks this court to reconsider the three identical arguments raised in Salts. See Salts, 288 Kan. at 265–66. First, that another trial was not a burden to either party; it is the State's obligation to provide a jury trial and the defendant's constitutional right. Second, the language was coercive because it appealed to the financial interests of the jurors as taxpayers. Lastly, the language contradicted Jury Instruction 9, which asked the jury not to consider what happens after trial.
Joyner fails to cite anything in the record to support her assertion that the jurors were coerced into their verdict out of concern of the “financial burden of furnishing a new trial.” Rather, the record indicates the jury heard 1 day of testimony during which Joyner admitted to using Schmuck's identity to secure a lease for an apartment and the district court fully and properly instructed the jury on the State's burden of proof and the elements of the crime charged. During deliberation, the jury sought access to documents not admitted into evidence, which indicates the jury was not deadlocked or pressured into reaching a verdict.
When a party fails to object to the giving of a jury instruction, this court applies a clearly erroneous standard of review. State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); 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.” 288 Kan. at 451–52. Under these circumstances, we are not convinced there was a possibility the jury would have returned a different verdict had the instructional error not occurred. Thus, the Allen instruction was not clearly erroneous and reversal is not required.
Joyner also claims the district court violated her Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Joyner argues the district court should have required the State to include her prior convictions in the complaint and prove those convictions before the jury beyond a reasonable doubt. Joyner concedes, however, that the Kansas Supreme Court has rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review.
There is no indication our Supreme Court is departing from its ruling in Ivory. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (reaffirming Ivory ). We follow precedent on this issue.
Affirmed.