Opinion
No. 104,690.
2012-05-11
STATE of Kansas, Appellee, v. Darren KILLINGSWORTH, Appellant.
Appeal from Reno District Court, Richard J. Rome, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court, Richard J. Rome, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Darren Killingsworth appeals his convictions for felony stalking, violating a protection from stalking order, and criminal threat. He challenges the sufficiency of the evidence to support the stalking conviction. He also raises a number of claimed jury instruction errors and sentencing errors. For the reasons set forth in detail below, we (1) reverse his conviction for felony stalking and remand for a new trial on that charge, (2) reverse his lesser-included conviction for violation of a protective order, (3) vacate and remand for further proceedings on the assessment of attorney fees, and (4) affirm on the remaining points of error.
This all started when Killingsworth's long-term relationship with Starla Antle ended, and Antle became involved with Bruce Cooper. Here is a chronology of the salient events:
Late 2008
Killingsworth and Antle end their 16–year relationship. They have two minor children together.
February 23, 2009
Cooper tells Scott Carlton, the school resource officer where Cooper is employed, that he has been having problems with Killingsworth contacting him and coming to his house. Both Cooper and Carlton call Killingsworth and tell him to leave Cooper alone.
That same day, Killingsworth calls Cooper's wife five times and tells her that Cooper is sleeping with Killingsworth's wife. Cooper's wife calls the police, but no further action is taken.
May 20, 2009
Cooper notifies the police that Killingsworth has been following him around in his vehicle. Cooper says Killingsworth ultimately ended up in the opposite lane from Cooper and swerved at Cooper when their vehicles passed. The police recommend that Cooper obtain a protection from stalking order.
May 22, 2009
Cooper obtains a protection from stalking order which is personally served on Killingsworth at 4 p.m. that day.
At around 5 p.m. that day, Killingsworth goes to Antle's home, threw wood around Antle's yard, and destroyed some dishes and a rake.
At around 6:30 p.m., Killingsworth stands across the street from Antle's home and yells at Cooper and Antle. Cooper calls the police. Killingsworth leaves. The police locate Killingsworth and explain the protection order to him and explain that he cannot make contact with Cooper, including being across the street from where he is.
May 25, 2009
Antle finds a note on her porch, in Killingsworth's handwriting, that states: “Brucie pussy you need to stay the fuck away from my [boys] get my point.” The note also contains a drawing of a dagger. It is not clear when the note was left on Antle's porch. The note is reported to the police as a violation of the protection order.
June 2009
Cooper moves in with Antle.
October 2009
Cooper and Antle marry.
At trial there was testimony about other alleged contacts, including Killingsworth showing up at a club where Cooper had a membership and Killingsworth using his daughter's phone to send text messages to Cooper.
The State pressed various charges against Killingsworth, including the charge of misdemeanor stalking for his conduct directed at Cooper before the protection from stalking order was entered and served, and the charge of felony stalking for his conduct after the protective order was entered and served on him.
Killingsworth was acquitted of the pre-protective order misdemeanor stalking charge, but he was convicted for felony stalking of Cooper. He was also convicted of criminal threat based on his conduct on or about February 22, 2009, and of violating the protection from stalking order based on his conduct on May 22, 2009.
Killingsworth was sentenced to 7 months' imprisonment but was granted 12 months' probation. At sentencing the district court also ordered Killingsworth to pay attorney fees of an unspecified amount which was later made specific in the journal entry. Killingsworth was to pay fees of $2,225. Killingsworth appeals.
Alternative Means
Killingsworth raises two separate alternative means arguments regarding his felony stalking conviction. An alternative means issue exists when a single charged crime may be committed in more than one way. State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011) (citing State v. Becker, 290 Kan. 842, 235 P.3d 424 [2010] ). As stated in Bailey:
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, a court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.’ “ 292 Kan. at 458, 255 P.3d 19 (quoting State v. Dixon, 289 Kan. 46, Syl. ¶ 7,209 P.3d 675 [2009] ).
It is important to distinguish an alternative means case from a multiple acts case. A multiple acts case exists when several acts are alleged, any of which could constitute the crime charged. Bailey, 292 Kan. at 458, 255 P.3d 19 (citing Becker, 290 Kan. at 855, 235 P.3d 424). As the court distinguished in Bailey:
“ ‘In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged.... To ensure jury unanimity in multiple acts cases, courts require that either the State elect the particular criminal act upon which it will rely for conviction or that the district court instruct the jury that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.’ “ 292 Kan. at 458, 255 P.3d 19 (quoting State v. Dixon, 289 Kan. 46, Syl. ¶ 7,209 P.3d 675 [2009] ).
Whether a criminal conviction involves alternative means or multiple acts is a matter of statutory interpretation over which our court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). • Killingsworth's First Alternative Means Theory
K.S.A.2010 Supp. 21–3438(a)(3) refers to the defendant intentionally or recklessly engaging in at least one act listed in subsection (f)(1) that violates the protection from stalking order. Killingsworth claims that the language “intentionally or recklessly” creates two alternative means of committing the crime of stalking.
We disagree. “Intentionally or recklessly” amount to different types of criminal intent that a perpetrator may have while engaged in the act of stalking, not alternative means of committing the crime. K.S.A. 21–3201(b) defines “intentional conduct” as “conduct that is purposeful and willful and not accidental.” K.S.A. 21–3201(c) defines “reckless conduct” as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” Based on these statutory definitions, “recklessly” and “intentionally” are different mental states that a defendant may have while completing a crime.
Crimes already established to involve alternative means focus on the physical acts that bring about the completed crime. Rape may be accomplished by alternative means, such as digital penetration, penetration with an object, or sexual intercourse. The crime is accomplished by means of a physical object or device applied to the body of the victim. The defendant employs the object or device as the means to accomplish the crime.
State v. Brooks, 46 Kan.App.2d 601, 265 P.3d 1175 (2011), highlights the debate regarding whether the use of “force or fear” are alternative means of committing the crime of rape. Regardless of the outcome of that debate, fear clearly relates to the mental state of the victim brought about by some act of the defendant; and force clearly relates to some act of the defendant to induce or compel the victim to succumb. In any event, the notion of force or fear is derived from action of the defendant; and the element of fear relates to the victim's mental state at the time of the crime, not the defendant's mental state.
Our Supreme Court has held that felony murder is an alternative means crime because the single offense—unlawful homicide—may be committed during an aggravated burglary, an aggravated robbery, the criminal discharge of a firearm, or some combination of those acts. Bailey, 292 Kan. at 458, 255 P.3d 19. Each of those underlying offenses creates an alternative means by which to commit the crime, and each is a physical act that must be completed by the perpetrator.
From this we conclude that crimes involving alternative means deal with different physical acts that a defendant may engage in to complete the crime. Under our statutes “intentionally” and “recklessly” refer to mental states rather than physical acts. A defendant does not employ his or her mental state to accomplish the crime of stalking. A defendant's mental state while engaged in the act of stalking must be intentional or reckless, but the means employed to accomplish the act is not the defendant's state of mind. In State v. Aguirre, 45 Kan.App.2d 141, 149, 245 P.3d 1,rev. granted 292 Kan. –––– (2011), the court observed:
“We find it a stretch to consider the different states of mind that a defendant may have while carrying out the act of intimidation to be different alternative means for committing the crime. The word means connotes causality between a proscribed act and its undesirable consequences; a method of accomplishing an end, i.e. of causing an end to occur. The defendant batters the victim by means of either punching or kicking. The mental state of malice in its various manifestations that a defendant may have while doing the prohibited act hardly seem to fit the notion of alternative means for committing the crime.”
Acting “intentionally or recklessly” are not alternative means of committing the crime of stalking. But even if these differing mental states were alternative means, “ ‘[u]nanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ “ Bailey, 292 Kan. at 458, 255 P.3d 19 (quoting Dixon, 289 Kan. 46, Syl. ¶ 7, 209 P.3d 675). Killingsworth concedes that the State presented “ample evidence” at trial that he acted intentionally when stalking Cooper. If we were to consider the sufficiency of the evidence of recklessness, we would view the evidence in the light more favorable to the prevailing party, the State. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Such a review of the evidence, examined in the light favoring the State, would lead us to conclude that there is ample evidence that Killingsworth acted recklessly. Killingsworth's first alternative means theory fails. • Killingsworth's Second Alternative Means Theory
K.S.A.2010 Supp. 21–3438(a)(3) states that the prohibited acts of stalking are listed in K.S.A.2010 Supp. 21–3438(f)(1), and engaging in at least one of the listed acts constitutes the crime of stalking if that act violates the protection order; would cause a reasonable person to be fearful; and, in fact, placed the targeted person in fear. The list of prohibited acts consists of the following:
“(A) Threatening the safety of the targeted person or a member of such person's immediate family.
“(B) Following, approaching or confronting the targeted person or a member of such person's immediate family.
“(C) Appearing in close proximity to, or entering the targeted person's residence, place of employment, school or other place where such person can be found, or the residence, place of employment or school of a member of such person's immediate family.
“(D) Causing damage to the targeted person's residence or property or that of a member of such person's immediate family.
“(E) Placing an object on the targeted person's property or the property of a member of such person's immediate family, either directly or through a third person.
“(F) Causing injury to the targeted person's pet or a pet belonging to a member of such person's immediate family.
“(G) Any act of communication.” K.S.A.2010 Supp. 21–3438(f)(1).
Killingsworth claims that each subsection is an alternative means by which the defendant may violate the statute. In fact, he finds alternative means within alternative means. For example, Killingsworth asserts that subsection (A) is an alternative means for committing the crime, and subsection (A) also includes a subset of two other alternative means—(1) threatening the safety of the targeted person, and (2) threatening the safety of a member of the targeted person's immediate family. In total, Killingsworth finds 31 alternative means subsets for committing the crime of stalking. According to Killingsworth, these various alternatives were before the jury in the court's instruction on the elements of the crime of stalking; and so in order to support a conviction the State was obligated to provide substantial evidence to support each of these 31 alternative means, which it failed to do.
The State has not briefed this issue.
Resolving this claim involves analyzing whether stalking is an alternative means crime or a multiple acts crime. As noted earlier, alternative means are different ways in which a single offense may be committed. A criminal defendant is entitled to a unanimous verdict of either guilty or not guilty. But in an alternative means case, the jury must be unanimous with regard to the issue of guilt but not with regard to the specific means by which the crime was accomplished, so long as there is substantial evidence to support each alternative means by which the crime could be committed.
On the other hand, a multiple acts case is one in which several distinct and separate acts are alleged, any one of which could constitute the crime charged. The separate acts are often characterized as being separated from one another in time and place and being prompted by a fresh impulse. See State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 (2001). In such a case jury unanimity is assured either by the State informing the jury of the particular act upon which it relies for a conviction or the district court instructing the jurors that they must all agree on the specific underlying criminal act upon which a conviction is based.
“The threshold question in a multiple acts analysis is whether defendant's conduct is part of one act or represents multiple acts which are separate and distinct from each other. [Citation omitted.]” State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2006). In State v. Vahn, 280 Kan. 782, 798–99, 127 P.3d 307 (2006), for example, the court determined that the defendant's actions of shooting, stopping to reload the gun, and continuing to shoot were not distinct acts motivated by fresh impulses, but were part of a continuous incident sharing an objective. On the other hand, in State v. Allen, 290 Kan. 540, 545, 232 P.3d 861 (2010), the court found multiple acts when a defendant possessed a controlled substance in two separate locations—his pocket and his bedroom.
In this case, Killingsworth's stalking conviction was predicated on his conduct after having been served with the protection from stalking order on May 22, 2009. He was served at 4 p.m. that day. At around 5 p.m. he went to Antle's home and destroyed property located there. At 6:30 p.m. he stood across the street from Antle's home and yelled at Cooper and Antle. At some point he left a threatening note for Cooper on Antle's porch. These facts support the conclusion that Killingsworth engaged in separate and distinct actions separated in time and location that appear to have been prompted by fresh impulses. Killingsworth destroying property on Antle's lawn is distinct from him going across the street to yell at Antle and Cooper and him leaving a threatening note on Antle's porch. Each of Killingsworth's actions was a fresh idea. Each constitutes an independent act, any one of which could have constituted stalking in violation of the protection order.
Because the stalking statute lists separate and distinct acts, any one of which could have been the basis for Killingsworth's stalking conviction, the crime presents a multiple acts issue rather than an alternative means issue. See Kesselring, 279 Kan. at 682, 112 P.3d 175. In multiple acts cases, either the prosecutor must elect which act is the basis for the stalking charge, or the district court must direct the jury to be unanimous in deciding which act constitutes the crime. See Bailey, 292 Kan. at 458, 255 P.3d 19. In this case, the district court gave an appropriate jury instruction:
“The State claims distinct multiple acts which each could separately constitute the crime of Count One; ... Count Two, Violation of a Protection Order; and Count Three, Stalking, In order for Darren Killingsworth to be found guilty of any of those counts, you must unanimously agree upon the same underlying act.”
Thus, under our caselaw, unanimity of the jury in reaching its verdict is assured. Killingsworth's second alternative means theory also fails.
Instruction Errors • Expanding the Charge to Include Recklessness
Killingsworth claims that the district court impermissibly broadened the complaint by including the word “recklessly” in the jury instruction when recklessness was not charged in the complaint. The complaint charged Killinsgworth with:
“ intentionally, after being served with, or otherwise provided notice of, any protective order included in K.S.A. 21–3843, and amendments thereto, that prohibits conduct with another person, to wit: Bruce Cooper; engage in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such his safety, or the safety of a member of his/her immediate family and to place said Bruce Cooper, in reasonable fear for his safety.” (Emphasis added.)
At the jury instruction conference, the State requested that the court instruct that the jury could find Killingsworth guilty of stalking if he had “intentionally or recklessly” engaged in at least one act of conduct prohibited by the protection order. Killingsworth's objection was overruled. Thus, in our review we examine the instruction to determine whether it properly and fairly states the law as applied to the facts of the case and whether it could have reasonably misled the jury. In making this determination, we consider the instructions as a whole and do not focus solely on one instruction. See State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The jury instructions should follow the charges contained in the charging document. State v. Trautloff, 289 Kan. 793, 217 P.3d 15 (2009). “A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous.” 289 Kan. at 802, 217 P.3d 15. The error is only excusable when “the substantial rights of the defendant are not prejudiced.” 289 Kan. at 802, 217 P.3d 15 (citing State v. Wade, 284 Kan. 527, Syl. ¶ 3, 161 P.3d 704 [2007] ). Here, giving this instruction was error under the principle stated in Trautloff. The issue for us is prejudice.
Killingsworth argues that this error prejudiced him because he prepared a defense only for the accusation that he intentionally stalked Cooper, not for the accusation that he recklessly did so. But we do not see how Killingsworth's defense preparation or trial strategy would have been any different given the facts with which he was confronted. Killingsworth's theory at trial was that he acted to assure the safety of his children, not to threaten Cooper. Further, Killingsworth relied on Cooper's earlier testimony that Killingsworth annoyed him but that Cooper was not afraid of him, thus countering the element of the crime that the defendant's conduct must have caused the victim to be fearful. We find no prejudice to warrant reversing for a new trial based solely upon this instruction. • Failing to Instruct the Jury on All the Elements of the Crime of Stalking
Killingsworth claims that the court failed to instruct the jury of all of the essential elements of the crime of stalking. In Instruction No. 6 the court instructed:
“In Count One, Darren Killingsworth is charged with the crime of Stalking. Darren Killingsworth pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Darren Killingsworth, after being served with a protective order prohibiting contact with Bruce Cooper, intentionally or recklessly engaged in at least one act of (A) Threatening the safety of the targeted person or a member of such person's immediate family; and/or (B) Following, approaching or confronting the targeted person or a member of such person's immediate family; and/or (C) Appearing in close proximity to, or entering the targeted person's residence, place of employment, school or other place where such person can be found, or the residence, place of employment or school of a member of such person's immediate family; and/or (D) Causing damage to the targeted person's residence or property or that of a member of such person's immediate family; and/or (E) Placing an object on the targeted person's property or the property of a member of such person's immediate family, either directly or through a third person; and/or (F) Any act of communication, an act that violates the protective order and would cause a reasonable person to fear for his safety or for the safety of his immediate family and Bruce Cooper was placed in fear.”
This jury instruction tracks the language of PIK Crim.3d 56.39. The problem with the instruction, as Killingsworth points out, is not with the exact words used, but the format in which they are presented, all of which we will discuss in a moment.
The State contends that Killingsworth invited this error when he urged the district court at the jury instruction conference to follow the language of PIK Crim.3d 56.39, which is what the district court did. We disagree. During the jury instruction conference, Killingsworth's attorney did ask the district court to follow the PIK language, but only after objecting to the instruction and being overruled. Killingsworth's attorney said that if the district court was going to overrule her objection, she requested that he follow the PIK verbatim. The doctrine of invited error does not apply.
Our standard for reviewing jury instructions found in Appleby, 289 Kan. at 1059, 221 P.3d 525, was stated earlier in this opinion and applies here. We need to determine if Instruction No. 6 properly and fairly stated the law as applied to the facts of the case and whether it could have reasonably misled the jury.
With regard to the use of PIK instructions, the court in State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009), stated:
“ “ “The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hestitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” “ [Citations omitted.]”
Here, the court followed Alternative C of PIK Crim.3d 56.39, which states, in the relevant part:
“That the defendant, after being (served with) (given notice of) a protective order prohibiting contact with (name of target), intentionally or recklessly engaged in at least one act of (here list the act from bulleted list in ‘course of conduct’ definition below), an act that violates the protective order and would cause a reasonable person to fear [for (his)(her) safety] [for the safety of a member of (his)(her) immediate family] and (name of target) was placed in such fear.”
The problem is that the court did not draft Killingsworth's instruction to clearly delineate the separate elements of the offense: (1) serving the protective order on Killingsworth or giving him notice of the protective order covering Cooper, (2) Killingsworth committing at least one of the listed acts in the instruction, (3) an act that violates the protective order, (4) would cause a reasonable person to be afraid, and (5) actually caused Cooper to be afraid. As drafted, the instruction appears to lump together factors (3), (4), and (5) under the act identified as item (F). In other words, “(F) Any act of communication” required the additional factors (3), (4), and (5), but items (A) through (E) did not. By changing the format but not the text, the trial court could have clearly expressed what the State had the burden to prove:
“In Count One, Darren Killingsworth is charged with the crime of Stalking. Darren Killingsworth pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Darren Killingsworth, after being served with a protective order prohibiting contact with Bruce Cooper, intentionally or recklessly engaged in at least one act of
(A) Threatening the safety of the targeted person or a member of such person's immediate family; and/or
(B) Following, approaching or confronting the targeted person or a member of such person's immediate family; and/or
(C) Appearing in close proximity to, or entering the targeted person's residence, place of employment, school or other place where such person can be found, or the residence, place of employment or school of a member of such person's immediate family; and/or
(D) Causing damage to the targeted person's residence or property or that of a member of such person's immediate family; and/or
(E) Placing an object on the targeted person's property or the property of a member of such person's immediate family, either directly or through a third person; and/or
(F) Any act of communication,
an act that violates the protective order and would cause a reasonable person to fear for his safety or for the safety of his immediate family and Bruce Cooper was placed in fear.”
The State takes the position that any jury confusion with the written instruction was cleared up in the State's closing argument. We disagree. In closing argument the prosecutor explained:
“And then we go to the first charged offense. It is in Instruction Number Six.... He's charged with stalking. It has essentially two elements to it.... The State has to prove first this big long one here and then the real short one at the top of the second page which is this act occurred on or between the 22nd and the 25th days of May, 2009, in Reno County. So let's look at the first one. First element. And you just go through them. It's like a checklist [D]id Darren Killingsworth, after being served with a protection order from any contact with Bruce Cooper.... You've got a copy of the Judge's order prohibiting contact with Bruce Cooper. It says any communication.... You don't communicate with him period. That's it. He was served [at] Four o'clock on May 22nd, 2009, and thereafter he went over to the house that night.... He engaged in at least one act.... Then it has a whole list.... But you will notice that once the defendant served with a protective order and then he engaged in at least one act of a whole list so what you do is you say, you go down the list and it's got A through ... F.... [D]id the defendant commit one act, one of those after he was served with the order.... That's pretty simple, ladies and gentlemen, because the last one, any act of communication. That's pretty obvious. He also threatened the safety, and he followed, approached. He ... appeared in close proximity to the where Mr. Cooper could be found. He did most of them on this list, but you just need to find one.
“And then finally ... [a]fter you find one of these acts, that act would violate the protective orders, you go back to the protective order. And did it say it prohibited communication, and it did. So it violates—it was an act that violates the protective order and would cause a reasonable person to fear for his safety....”
First, in explaining this instruction in closing argument the State focused on acts of communication, the very factor in item (F) of the instruction that causes the problem. A number of the charged acts do not involve what we would consider an act of communication: Killingsworth (B) following Cooper, (C) going near Cooper's place of employment, (D) damaging Antle's property, or (E) placing an object on Antle's porch.
Second, the jury instructions, which the judge read to the jury in open court and which were provided to the jury in written form for use during their deliberations, have a markedly greater impact on the jury than the fleeting remarks of counsel in closing argument. The trial judge prefaced the detailed instructions with the statement that it was his duty to instruct the jurors on the law that applied to the case, and it was the duty of the jurors to consider and to follow all of the instructions. Jurors were admonished regarding the more limited role the lawyers play in explaining the instructions given by the court. One of the trial judge's final admonitions to the jury was that its “verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.” Clearly, the written words of the judge trumped the oral comments of counsel in discussing the instructions. It was the written instructions that the jurors referred to during the course of their deliberations and that guided them to their verdict.
We conclude that while Instruction No. 6 contained the proper words in the proper sequence, because of the way the instruction was formatted it did not properly and fairly state the applicable law and could have reasonably misled the jury. Therefore, we reverse Killingsworth's stalking conviction and remand the case for a retrial on this one charge.
Violating a Protection from Stalking Order—a Lesser Included Offense of Felony Stalking
Killingsworth claims it was error for him to be convicted of both felony stalking and violating the protection from stalking order because the crime of violating the protective order is a lesser included offense of felony stalking. K.S.A. 21–3107(2) states that a defendant may not be convicted of both a crime and a lesser included offense of that crime.
Whether a crime is a lesser included offense is a question of law over which we have unlimited review. State v. Alderete, 285 Kan. 359, 361–62, 172 P.3d 27 (2007).
K.S.A. 21–3107(2)(b) defines a type of lesser included offense: “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” In accordance with this statute and with the holding in Alderete, the determinative question for us is whether all of the elements of violating a protection from stalking order can be found in the felony stalking statute. The statutory elements of these crimes are as follows:
K.S.A.2010 Supp. 21–3438(a)(3), stalking:
“(3) after being served with, or otherwise provided notice of, any protective order included in K.S.A. 21–3843 ... that prohibits contact with a targeted person, intentionally or recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person's safety, or the safety of a member of such person's immediate family and the targeted person is actually placed in such fear.”
K.S.A.2010 Supp. 21–3843(a), violation of a protective order:
“(a) Violation of a protective order is knowingly or intentionally violating:
....
“(6) a protection from stalking order issued pursuant to K.S.A. 60–31a05 or 60–31a06, and amendments thereto.”
It is clear that violation of a protective order is a lesser included offense of felony stalking. If a defendant intentionally violates a protection from stalking order, the defendant has committed the lesser crime defined in K.S.A.2010 Supp. 21–3843(a)(6). More needs to be shown to establish the more serious crime of felony stalking under K.S.A.2010 Supp. 21–3438(a)(3), but the same elements that can constitute the lesser crime of violating the protective order can be found in the felony stalking statute. Intentional conduct is an element in each, and violating a protective order is an element in each. Accordingly, we reverse Killingsworth's conviction for violating the protective order. See State v. Winters, 276 Kan. 34, 43, 72 P.3d 564 (2003).
The Imposition of Attorney Fees
Killingsworth contends the district court erred in ordering him to pay attorney fees in an amount not specified at the sentencing hearing. The State argues that the district court was “clearly assessing the amount specified in the presentence investigation report (PSI) which it had in front of the Court to sentence the defendant.” But this is not clear. During the portion of the sentencing hearing when the district court imposed the fees, the district court did not make any reference to the PSI or otherwise indicate that it intended to follow the PSI's recommendation. The record leaves no indication that Killingsworth would have understood that the amount he was to pay was the amount stated in the PSI. Ultimately, Killingsworth was ordered to pay $2,225 in attorney fees.
In State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006), our Supreme Court held: “A sentencing court assessing fees to reimburse the Board of Indigent Defense Services under K.S.A.2005 Supp. 22–4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.”
In State v. Stevens, 285 Kan. 307, 330, 172 P.3d 570 (2007), the court stated that the district court must state a specific amount on the record to meet the requirements of K.S.A. 22–4513: “When the district court initially fails to tax a specific amount of attorney fees claimed by BIDS, then obviously that court is unable to adequately evaluate the amount of such unknown sum that the defendant is able to pay.”
Absent some indication that our Supreme Court is departing from its previous positions, we are duty bound to follow Robinson and Stevens. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Accordingly, we vacate the order for attorney fees and remand for a determination of attorney fees consistent with Robinson and Stevens.
Apprendi Issue
Finally, Killingsworth argues 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), when it took into account his prior convictions for sentencing purposes without proving them to a jury. The issue has been decided adverse to Killingsworth's position in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). We are bound to follow Ivory. This argument fails.
Affirmed in part, vacated in part, reversed in part, and remanded.