Opinion
Nos. 107,238 107,239.
2013-08-30
STATE of Kansas, Appellee, v. Timothy LOHF, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Christina M. Kerls, 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; Timothy J. Chambers, Judge.
Christina M. Kerls, 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 BUSER, P.J., SCHROEDER, J., and Knudson, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is a consolidated appeal by Timothy Lohf who was convicted in two separate Reno County criminal cases. In Case No. 10–CR–490, Lohf appeals the district court's denial of his motion to withdraw no contest pleas to three counts of aggravated assault (K.S.A.21–3410). In Case No. 10–CR–803, a jury convicted Lohf of aggravated battery (K.S.A.21–3414[a][1][A] ), possession of cocaine with intent to sell (K.S.A.2010 Supp. 21–36a05[a] [1] ), and obstruction of official duty (K.S.A.21–3808). In this case, Lohf appeals the trial court's denial of his motion to suppress evidence, three claimed instructional errors, and the imposition of allegedly unconstitutional sentences. Having carefully considered the record on appeal, the parties' briefs, and their oral arguments, we affirm the district court's rulings.
Factual and Procedural Background
On September 7, 2010, Lohf pled no contest to three counts of aggravated assault in Reno County Case No. 10–CR–490. In exchange for Lohf's pleas, the State agreed to dismiss the remaining charge of aggravated battery and to recommend concurrent sentences. After verifying that Lohf was satisfied with the services of his attorney, Sarah McKinnon, and that he knowingly and voluntarily entered his pleas, the district court found Lohf guilty as charged. Lohf was released on an appearance bond pending sentencing.
Two weeks later, on September 20, 2010, Lohf was involved in a shooting that occurred in Hutchinson, Kansas. At the scene, police officers discovered bullet fragments inside a tire of an SUV, and they recovered three spent 9–mm shell casings from the roadway. One bullet struck Anthony Wilson (Anthony) on the left side of his torso and exited a short distance behind the entry wound.
At the later trial, Monique McCoy (Anthony's sister), Mary Ledesma (girlfriend of Anthony's uncle), Floyd Logan (Floyd), and Thialin Logan (Anthony's cousin), testified that on September 20, 2010, Thialin, McCoy, and Anthony's brother, Austin Wilson (Austin), were helping Floyd and Ledesma move into a new residence. During the move, McCoy, Ledesma, Thialin, and McCoy's young daughter entered an SUV to leave when a vehicle approached and a commotion ensued. Thialin explained that Anthony, Austin, and Floyd were outside when the vehicle arrived. Thialin heard somebody “asking for somebody” and words “came from the street and ... from the other side of [the SUV].” Shortly thereafter, McCoy, Ledesma, and Thialin heard gunshots, and one of the bullets struck the tire of their SUV.
Floyd testified that he saw a black, early 90's model Buick LeSabre, driven by a young white male (later identified as Lohf) pull up in front of his residence. According to Floyd, his nephews spoke with the driver but he could not hear the conversation. Shortly thereafter, the driver started to drive away, pointed a gun over his left shoulder, and started “[r]andomly shooting” towards the rear of the vehicle.
Austin testified that he, Anthony, and Floyd were standing outside the SUV saying goodbye to McCoy, Ledesma, Thialin, and McCoy's daughter, when a black vehicle pulled up. The driver asked for Floyd by his alias, “Junior,” even though Floyd was standing right next to them. Confused, Anthony and Austin asked, “Who is looking for Junior?” The driver continued to demand information regarding Floyd's whereabouts, causing Anthony and Austin to exchange “heated words” with him. While engaged in this quarrel, Anthony and Austin began walking towards the vehicle. When they were about 4 feet from it, the driver drove forward, pointed a handgun out of the driver's side window, and fired four rounds at them.
Anthony testified that as he was standing near the SUV, a black vehicle pulled up and the driver asked for “Floyd or Junior.” The driver identified himself as “Tim.” Anthony asked Tim why he wanted Floyd, and the driver replied in an aggressive manner, “I got something for him.” Anthony then stated, “[W]ell, if you got something for him let me have it.” Tim answered, “[W]hen you see Junior tell him I've got something for him,” and he began to drive away. Anthony testified that neither he nor Austin approached the vehicle's window or reached inside. As Tim drove away, Anthony threw a beer bottle at the car, whereupon the driver started firing in Anthony's direction.
The initial shot struck Anthony on his left side. Treatment of the wound required a hospital stay of almost 1 day. Anthony was left with a permanent scar and “no feeling” in the area of the scar.
Shortly after the shooting, a police dispatch was issued to be on the lookout for a black, four-door Buick LeSabre. Five minutes later, Officer Jake Graber, of the Hutchinson Police Department, observed a “black colored four-door Buick [Park Avenue] passenger car” a short distance from the crime scene. Officer Graber recognized the car because it was typically operated by Lohf and his girlfriend, Randi Kimball. Officer Graber activated his emergency lights as the Buick was parking in an apartment complex. The officer knew that Lohf and Kimball both resided at this location.
Lohf exited the vehicle, and Officer Graber then ordered him “at least two to three times to get back in the vehicle” so he could investigate whether Lohf was the suspect involved in the shooting. Lohf ignored the officer's directives and fled from the scene.
Shortly thereafter, an officer brought Floyd to the apartment complex. After Floyd identified the Buick Park Avenue Lohf was driving as the vehicle involved in the shooting, a search warrant was obtained. Officers also obtained a search warrant for Lohf's apartment.
While searching the apartment, officers found a gun box containing a receipt for a Hi–Point 9 mm handgun and a box of ammunition with eight rounds missing. In the Buick, which was registered to Kimball, officers found a folding knife, a loaded Hi–Point 9 mm handgun with one round of ammunition in the chamber and three rounds in the magazine, and a vial containing individually wrapped pieces of cocaine. A forensic examination by the KBI revealed that the shell casings found at the crime scene were fired from the handgun recovered from the Buick.
A few days later, Lohf was arrested. The State charged Lohf, in Reno County Case No. 10–CR–803, with attempted murder in the first degree, aggravated battery, possession of cocaine with intent to sell, criminal discharge of a firearm, criminal possession of a firearm, and felony obstruction.
One month later, prior to sentencing in the earlier case 10–CR–490, Lohf filed a motion to withdraw his no contest pleas, under K.S.A.2010 Supp. 22–3210(d)(1). Lohf argued that good cause existed because a witness who was previously unwilling to come forward and exonerate him had recently agreed to testify. But due to McKinnon's ineffective assistance, “he did not fully understand the subpoena process and that said witness could have been subpoenaed ... to provide said testimony.”
After appointing Lohf new counsel, the district court held an evidentiary hearing on his motion to withdraw pleas. The district court denied Lohf's motion. It found that McKinnon's legal services were not ineffective, that Lohf was fully advised of his rights at the plea hearing, and Lohf's demeanor at that hearing supported the conclusion that he was “freely, voluntarily, and intelligently” waiving his rights. Immediately thereafter, the district court sentenced Lohf to 24 months' probation with an underlying prison term of 13 months.
On June 28, 2011, Case No. 10–CR–803 proceeded to trial. At the trial, Lohf testified that on September 20, 2010, he drove to Floyd's house, who Lohf knew as “Junior,” to purchase drugs. Lohf acknowledged that he had sold drugs in the past, and on this particular evening, he possessed and intended to sell the cocaine found in his vehicle. Lohf, however, did not have “outright” the drugs his customer wished to purchase; thus, because Junior had supplied him drugs in the past, Lohf decided to drive by Junior's residence to see if he could obtain the drugs.
According to Lohf, when he arrived at Junior's residence, he stopped his vehicle, stuck his head out the window, and called Junior's name. Even though Junior was standing outside looking at Lohf, Anthony approached Lohf's vehicle and asked who he was and what he wanted. Lohf told Anthony that his name was “Tim” and he wanted to speak with Junior because he “had something for him.” Anthony and Austin walked up to Lohf's car window and said, “[W]hat you got?” Lohf had about $300 in his hand, so he “kind of flashed the money to them to indicate, you know, I'm here, you know, to buy drugs.” According to Lohf, however, he did not specifically tell Anthony and Austin that he wanted to buy drugs. Lohf described his exchange with the two men as “normal,” although he indicated that “[t]here was [some] attitude” involved.
After Lohf showed them the money, Anthony told Lohf to give it to him. When Lohf refused, Austin grabbed Lohf's arm and attempted to take the money from his hand. Lohf testified that he dropped the money, causing it to fall on the vehicle's floorboard. Austin then began pulling on Lohf's left arm “like he was trying to drag [him] out of the car window.”
Lohf testified that he was carrying a firearm due to the danger involved in selling drugs. Because he was panicked, outnumbered, and scared that Austin would harm him, Lohf grabbed his gun, held it at a downward angle between Anthony and Austin, and fired three times. Lohf testified that he never intended to shoot anyone or cause bodily harm; instead, his intent in firing was to scare Austin, so he “could put the car in [drive] and be on [his] way and get out of that situation.” According to Lohf, he achieved the desired result because Austin let go of his arm, which allowed Lohf to quickly drive away. Lohf admitted at trial that when he saw Officer Graber and heard his commands, he fled the area because he was scared.
At the conclusion of the trial, the jury convicted Lohf of aggravated battery, possession of cocaine with intent to sell, and obstruction of official duty. On August 22, 2011, the district court sentenced Lohf to a controlling prison sentence of 162 months followed by 36 months' postrelease supervision.
Lohf timely appealed the denial of his motion to withdraw pleas in Case No. 10–CR–490 and all adverse rulings in Case No. 10–CR–803. His appeals were consolidated for consideration by our court.
Denial of Motion to Withdraw Pleas
On appeal, Lohf contends the district court abused its discretion when it denied his presentencing motion to withdraw pleas in Case No. 10–CR–490. Lohf complains that McKinnon provided ineffective assistance because she failed to advise him of his right to subpoena witnesses. As a result, Lohf argues that his pleas were not fairly and understandably made. The State counters that the district court did not abuse its discretion because it fully advised Lohf of his constitutional rights when he entered his pleas.
Prior to sentencing, a district court may, in the exercise of judicial discretion, withdraw a defendant's plea of guilty or nolo contendere “for good cause shown.” K.S.A.2010 Supp. 22–3210(d)(l). When determining whether the defendant has shown good cause, Kansas courts generally consider the following three factors commonly referred to as the “ ‘Edgar factors' “—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): “(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010).
Of particular relevance to this case, appellate courts will not disturb a ruling on a presentencing motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its discretion. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). 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).
The party asserting that the district court abused its discretion bears the burden of proving such abuse. State v. Hulett, 293 Kan. 312, 318–19, 263 P.3d 153 (2011).
At the hearing on Lohf's motion to withdraw his pleas, both McKinnon and Lohf testified. McKinnon stated that she briefly met with Lohf in her office “[p]robably once or twice” and spoke to him “[s]everal times” by phone. After the preliminary hearing, Lohf asked McKinnon to pursue a plea agreement, so she initiated plea negotiations. McKinnon forwarded the State's offer to Lohf in a letter, and he advised her that he wished to accept it.
Prior to the plea hearing, McKinnon generally explained Lohf's constitutional rights to him, but she did not specifically review his right to subpoena witnesses. McKinnon acknowledged, however, that at the plea hearing, she told Judge Chambers that in her opinion, Lohf “freely, intelligently, and voluntarily was waiving his rights and entering [his] plea[s].”
After Lohf's arrest in Case No. 10–CR–803, the district court assigned McKinnon to, once again, represent him. As in the prior case, Lohf asked McKinnon to negotiate a plea agreement. The State responded with a plea offer which mentioned that, based on Lohf's pleas in Case No. 10–CR–490, he now had a criminal history score of A. McKinnon relayed the State's plea offer to Lohf.
The next day, Lohf told McKinnon that he wished to withdraw his pleas in the earlier prosecution, Case No. 10–CR–490, due to her ineffective assistance. According to McKinnon, prior to this time, Lohf had never told her about a potential witness nor had he ever asked any questions about subpoenaing a witness. Lohf told McKinnon that he never mentioned the witness (his uncle) because “the guy didn't want to get involved.” McKinnon had her investigator meet with the uncle, and according to the investigator, the witness appeared to be “very credible.”
At the hearing, Lohf testified on his own behalf. He claimed that prior to entering his pleas, McKinnon did not fully discuss his rights with him, and he did not sign a generic rights waiver and plea form. Lohf denied asking McKinnon to pursue a plea agreement in Case No. 10–CR–803, and he claimed that McKinnon never informed him of a plea offer from the State. Lohf acknowledged, however, that he understood that in Case No. 10–CR–803 he faced a potential prison sentence of more than 50 years.
Lohf testified that he wished to withdraw his pleas because McKinnon failed to advise him of the subpoena process, not because of the adverse impact the pleas had on his criminal history score in the event he was convicted in the later criminal case. Lohf further explained that he did not tell McKinnon about his uncle because his uncle told him that he did not want to be involved. Importantly, Lohf admitted that the district court advised him of his rights at the plea hearing—including his right to subpoena witnesses—yet with this information, he still told the district court that he wished to plead.
At the conclusion of the hearing, the district court denied Lohf's motion, finding that he failed to show good cause to set aside his pleas. The district court ruled that Lohf received competent representation, and if McKinnon's assistance was somehow ineffective by failing to advise Lohf of his right to subpoena witnesses, this deficiency was “taken care of and resolved by the court advising [Lohf] of that right at the time he took his plea[s].” The district judge also explained:
“At the time of entry of plea the court attempts to take great care in determining in its mind whether the plea is freely, voluntarily, intelligently made. Not only do I go through the questioning when those questions are proffered to a criminal defendant, I attempt to observe that defendant to see if there's any hesitancy in the plea.
“That certainly is something that occurs on some occasions. I do have a recall of Mr. Lohf appearing to enter his pleas. There was no hesitancy whatsoever when he entered the pleas. That would be confirmed by the evidence, that he is in fact the individual who requested that a plea agreement be made. That's what the evidence shows. And he willingly accepted that. The court went through all of the rights including the right to subpoena witnesses and present any evidence necessary to defend the defendant would be presented.
....
“The court felt confident at the time that it was taking this plea that the defendant was freely, voluntarily, and intelligently waiving his rights. I still feel that based upon the evidence I have heard today. The defendant was clearly aware of what he was doing, clearly aware of the rights he was giving up including the right to call witnesses.
“Basically I'm being told today that don't consider the fact that once he's rearrested that triples, or severely increases the time he might spend on his new case. But to consider the fact that he made a determination without informing his attorney of any of this information, that he didn't want to call a witness but after he gets arrested and sitting in jail independently he comes up with the determination that perhaps maybe [he] should have had a trial and called his uncle to testify against, apparently, the three victims and the law enforcement in the case.” (Emphasis added.)
On appeal, Lohf now asserts that the district court's recitation of his right to subpoena witnesses did not include a definition of the term “subpoena,” and “[w]ithout [his] understanding that [the] ability to ‘subpoena’ witnesses meant that he could require a witness, however unwilling, to come to court and testify, ... it cannot be said that he knowingly and understandingly waived that right.”
At the outset, Lohf did not raise this particular argument in the district court. Generally, legal theories asserted for the first time on appeal are not properly before this court for review. Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009). Our Supreme Court, however, has recognized exceptions that allow an appellate court to consider a newly asserted legal theory. 288 Kan. at 125. But Lohf did not claim an exception or brief its applicability, and an issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Our review of the record convinces us that, as the district court found, Lohf was fully advised of his constitutional rights—including the right to subpoena witnesses—prior to voluntarily entering his pleas. While McKinnon did not specifically inform Lohf of the right to subpoena witnesses, the district court did convey that information and Lohf voluntarily waived that right, as follows:
“THE COURT: You do have a right to a jury trial. At that jury trial Ms. McKinnon would represent you. She would cross-examine any witnesses called by the [S]tate. She would subpoena witnesses on your behalf and present any evidence she felt necessary to properly defend you.
....
“By entering guilty or no contest plea[s] today those events will not take place and you will have waived those rights. Are you telling me after discussing the matter with Ms. McKinnon that is how you wish to proceed?
“THE DEFENDANT: Yes, sir.” (Emphasis added.)
As our Supreme Court has instructed, the prejudicial effect of defense counsel's failure to comply with the obligation to provide a defendant with appropriate advice prior to the entry of a plea may be remedied if the defendant is provided with the information necessary to make an informed decision by other sources, such as a written plea agreement or the plea colloquy conducted by the judge See State v. White, 289 Kan. 279, 287, 211 P.3d 805 (2009). In the present case, the district court's colloquy regarding Lohf's ability to subpoena witnesses remedied any defect in McKinnon's representation.
Moreover, the district judge at the hearing on Lohf's motion to withdraw pleas was the same judge who presided at the plea hearing. In Macias–Medina, our Supreme Court noted that when the same judge presides over the plea hearing and the withdrawal hearing, that judge is in “the best position to resolve conflicts in the testimony and make the determination [whether a defendant's] pleas were knowingly and intelligently made.” 293 Kan. at 839.
In conclusion, after considering the Edgar factors, there is substantial competent evidence to support the district court's ruling that Lohf knowingly and voluntarily entered his pleas in Case No. 10–CR–490. Accordingly, the district court did not abuse its discretion when it denied Lohf's motion to withdraw his no contest pleas.
Denial of Motion to Suppress Evidence
Lohf contends the district court erred in denying his motion to suppress incriminating evidence obtained during the search of his Buick automobile without holding an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
Detective John Moore of the Hutchinson Police Department prepared the affidavit in support of the search warrant. In the affidavit, the detective explained that witnesses to the shooting described the shooter as a “young white male named Tim' who was driving a black colored four-door Buick LeSabre.” Minutes later, Officer Graber spotted a black colored four-door Buick with a “similar body style to a Buick LeSabre.” The officer followed the Buick into an apartment complex, and the vehicle pulled into a parking area. Officer Graber was familiar with the vehicle and its driver, Lohf, a 19–year–old white male who Detective Moore averred “is currently charged with Aggravated Assault in Reno County District Court case 10 CR 490.” Officer Graber activated his vehicle's emergency lights. As Lohf stepped from the car, the officer “asked him to get back in his car. Lohf, began looking nervous ... and fled on foot.” Officer Graber “gave chase while ordering [Lohf] to stop” but “lost sight of him about a half-block” away from the vehicle. Detective Moore also averred:
“The black colored 4–door Buick was identified in the parking lot as a Buick Park Avenue, bearing Kansas license plate # 805 AGN, and is registered to Randi Kimball.... The body style of a Buick LeSabre and a Park Avenue are very similar. One of the witnesses to the drive-by shooting was brought to the apartment building's parking lot and identified the black colored Buick Park Avenue as the vehicle involved in the shooting.”
Lohf filed a pretrial motion to suppress evidence obtained from the execution of the search warrant. In relevant part, Lohf argued that Detective Moore intentionally, or with reckless disregard for the truth, omitted material facts from the affidavit. Specifically, Lohf alleged that Detective Moore did not mention the fact that the witness who identified his Buick Park Avenue as the vehicle involved in the shooting had previously described this vehicle as a Buick LeSabre and had failed to mention the tag number or the current model or year of the vehicle, and that the vehicle had “clearly and prominently displayed on the rear window, in white writing, a telephone number,” which the witness also failed to identify. Lohf asserted that due to these omissions, the allegations in the affidavit were misleading and “may have improperly convinced the judge that there was sufficient evidence upon which to issue a search warrant.”
The district court held a hearing to consider Lohf's motion to suppress. After listening to the parties' arguments, the district court denied Lohf's motion, finding that even with the addition of the omitted material, Officer Graber had reasonable suspicion to stop Lohf and the affidavit established probable cause to search his vehicle. The district judge explained, “I don't find that if the affidavit had contained identifying details about this vehicle that then the affidavit would somehow be deficient in establishing probable cause.”
Preliminarily, we question whether Lohf preserved this issue for appeal. In his brief, Lohf asserts that he “renewed his objection to the evidence found at trial” and refers us to the trial record wherein defense counsel timely objected to 13 photographs taken of the evidence found in the Buick. However, the vial of cocaine, the magazine and ammunition, and the Hi–Point 9 mm handgun were all individually admitted into evidence after defense counsel specifically advised the trial court that he had “[n]o objection” to their admission into evidence. Inexplicably, the State does not mention this preservation issue on appeal.
When the trial court has denied a pretrial motion to suppress evidence, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. See K.S.A. 60–404; McCaslin, 291 Kan. at 705–07, 726–27;State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). For purposes of this appeal, we will consider whether the photographs of the incriminating evidence should have been suppressed. By affirmatively informing the trial court that he did not object to the admission of the actual incriminating items at trial, however, Lohf failed to preserve for appellate review his pretrial motion urging suppression of the items of incriminating evidence found in the car.
“[A]n affidavit in support of a search warrant is presumed valid, and in most cases, the facts contained therein may not be disputed by the party against whom the warrant is directed.” State v. Adams, 294 Kan. 171, 178–79, 273 P.3d 718 (2012) (citing Franks, 438 U.S. at 171). However, under Franks, an evidentiary hearing is required if a defendant shows, by a sworn allegation, that the search warrant affidavit is unreliable because it either: (1) contains material statements of deliberate falsehood or of reckless disregard for the truth that were necessary to find probable cause or (2) deliberately omits a material fact. 294 Kan. at 179. When the defendant alleges that an affidavit in support of a search warrant omits information, the district court and appellate court must determine if the omission was material and, if so, whether the omission rendered the application and affidavit unreliable. State v. Schoonover, 281 Kan. 453, 513, 133 P.3d 48 (2006). A warrant containing omissions is valid, however, if the affidavit, even with the omitted material added to it, sufficiently established probable cause. 281 Kan. at 513. If probable cause exists, with the addition of the omitted material, an evidentiary hearing is not required. See Adams, 294 Kan. at 179.
When a district court conducting a Franks analysis determines there is probable cause for the issuance of a search warrant rendering an evidentiary hearing unnecessary, appellate courts will review that determination under the same deferential standard employed in other appeals involving challenges to a search warrant affidavit. Adams, 294 Kan. 171, Syl. ¶ 4. Our Supreme Court has articulated this standard:
“ ‘When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit's sufficiency under this deferential standard.’ [Citation omitted.]” 294 Kan. at 180.
We have carefully reviewed the search warrant affidavit in question. We note that, contrary to Lohf's assertion, the affiant disclosed that the eyewitnesses identified a different model of vehicle than the one identified by one of the witnesses as being involved in the shooting. The affidavit asserted, however, that the Buick Park Avenue sought to be searched “had a similar body style to a Buick LeSabre,” which was the model of car described by the eyewitnesses. Importantly, Lohf does not contest that these two Buick models have similar styling.
It is unclear how Detective Moore's omission of the fact that Lohf's car had a phone number handwritten across the back window was a material omission that negated any finding of probable cause. The eyewitnesses identified a “black colored 4–door Buick LeSabre” driven by a white man named Tim. A few minutes after this description was broadcast to police officers, a black colored four-door Buick Park Avenue driven by Lohf was observed nearby. Lohf fled the scene, disobeying repeated commands by Officer Graber. Moreover, at this time, as referenced in the affidavit, Lohf had been charged with aggravated assault in Case No. 10 CR 490. Finally, one of the eyewitnesses positively identified Lohf's vehicle as the automobile involved in the shooting.
We conclude that, given the totality of the circumstances, the issuing magistrate had a substantial basis for concluding probable cause existed because the search warrant affidavit sufficiently demonstrated that there was a fair probability police would discover evidence inside Lohf's vehicle. Accordingly, the district court did not commit reversible error when it denied Lohf's motion to suppress pursuant to the Franks decision without holding an evidentiary hearing.
Failure to Instruct on the Lesser Included Offense of Aggravated Battery
The State charged Lohf with the most serious form of aggravated battery—severity level 4 aggravated battery. A defendant is guilty of severity level 4 aggravated battery if he or she “[i]ntentionally caus[ed] great bodily harm to another person or disfigurement of another person.” (Emphasis added.) K.S.A. 21–3414(a)(1)(A). At trial, the trial court provided the jury with this instruction:
“NO. 11
“In Count Two Timothy Lohf is charged with the crime of aggravated battery. Timothy Lohf pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That Timothy Lohf intentionally caused great bodily harm to or disfigurement to Anthony Wilson;
2. That this act occurred on or about the 20th day of September 2010, in Reno County, Kansas.”
On appeal, Lohf contends the trial court erred when it refused to give the jury an instruction on the lesser included offense of severity level 7 aggravated battery. The lesser included offense of severity level 7 aggravated battery is defined as: “[i]ntentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” (Emphasis added.) K.S.A. 21–3414(a)(1)(B).
As recently articulated by our Supreme Court, when considering instructional issues, appellate courts utilize the following analytical framework and corresponding standards of review:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
“To fully preserve a claim that the trial court erred in failing to give a particular jury instruction, the defendant must distinctly state an objection to the omission before the jury retires to consider its verdict. [Citations omitted.]” State v. Stevenson, 297 Kan. 49, 56, 298 P.3d 303 (2013). Lohf properly preserved this issue for review by specifically requesting an instruction on severity level 7 aggravated battery.
At the instructions conference, Lohf argued that while caselaw indicates that a “through-and-through bullet wound is great bodily harm as a matter of law,” his circumstances were distinguishable because Anthony sustained a “flesh wound,” which “at least insinuates a minor wound or something less serious than great bodily harm.” The district judge denied Lohfs request:
“The State [v.] Valentine [, 260 Kan. 431, 921 P.2d 770 (1996),] case does say that there may be instances where a bullet wound is not great bodily harm when, for example, it grazes the skin. But this was not a grazing. 1 mean the evidence is that it was a through-and-through type of injury, so I will overrule that request.”
We must first determine whether a lesser included offense instruction was legally appropriate. This is a question of law subject to unlimited appellate review. Plummer, 295 Kan. at 161. This question is easily decided because K.S.A. 21–3414 establishes various degrees of aggravated battery with severity level 7 aggravated battery as a lesser included offense of severity level 4 aggravated battery. See State v. Simmons, 295 Kan. 171, 175, 283 P.3d 212 (2012).
Next, we consider whether the facts of this case supported the giving of a lesser included offense instruction. See Plummer, 295 Kan. at 161–62. In this regard, “the giving of lesser included crime instructions is not a matter of discretion with the trial judge.” State v. Williams, 295 Kan. 506, 521, 286 P.3d 195 (2012). District courts shall instruct the jury on lesser included offenses “where there is some evidence, emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime.” State v. Rodriguez, 295 Kan. 1146, Syl. ¶ 1, 289 P.3d 85 (2012); see K.S.A.2010 Supp. 22–3414(3). Where, however, “all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, ... instructions relating to the lesser degree of the offenses are not necessary.” State v. Brice, 276 Kan. 758, Syl. ¶ 4, 80 P.3d 1113 (2003). In other words, a district court does not err in refusing to give a lesser included offense instruction if the evidence does not support it. Plummer, 295 Kan. at 161.
“Such an inquiry is closely akin to the sufficiency of the evidence review frequently performed by appellate courts in criminal cases where “ ‘the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ [Citations omitted.] Of course, where the defendant has requested the lesser included offense instruction, the evidence should be viewed in the light most favorable to the defendant. [Citation omitted.] But deference is given to the factual findings made below, in the sense that the appellate court generally will not reweigh the evidence or the credibility of witnesses. [Citation omitted.]” 295 Kan. at 162.
The crux of Lohf's claim on appeal is that a reasonable jury could have found that Anthony merely sustained bodily harm rather than great bodily harm. See K.S.A. 21–3414(a)(1)(A)–(B). As a result, Lohf argues that an instruction on severity level 7 aggravated battery should have been given to the jury. Although not subject to precise definition, our Supreme Court has determined that “[t]he word ‘great’ distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor, or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.” State v. Johnson, 46 Kan.App.2d 870, 881, 265 P.3d 585 (2011) (citing State v. Whitaker, 260 Kan. 85, 93, 917 P.2d 859 [1996] ). Except for a few injuries that have been “ ‘declared to be great bodily harm as a matter of law,’ “ the determination of whether the victim's injuries quality as “great” is a question of fact for the jury. Simmons, 295 Kan. at 177–78.
As Lohf contends, and the State acknowledges, in Brice our Supreme Court disapproved of prior precedent, including State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996), which indicated that a through and through bullet wound constitutes great bodily harm as a matter of law. Brice, 276 Kan. at 773–74. The Supreme Court noted, however, that based on the evidence, a district court “could determine that a bullet wound, even one that missed bone, major arteries, veins, and nerves, is not slight, trivial, moderate, or minor and will not support a lesser included instruction for battery.” 276 Kan. at 774.
In Brice, the victim sustained a through and through gunshot wound. The bullet entered the victim's upper right thigh and exited through his right buttock without hitting bone, major arteries, veins, or nerves, although it caused a scar, an overnight stay at the hospital and the loss of a week and a half of work. Our Supreme Court found this evidence did not warrant a lesser included offense instruction for battery. 276 Kan. at 774; see also Whitaker, 260 Kan. at 94 (defendant inflicted great bodily harm when he shot the victim through his right arm, even though the bullet did not strike bone, and the victim missed 3 days of work), disapproved on other grounds by Brice, 276 Kan. at 773–74.
We find no error in the trial court's determination that because the evidence did not support bodily harm rather than great bodily harm, a lesser included offense instruction of severity level 7 aggravated battery was not appropriate in this case.
We have carefully reviewed the trial record and we conclude the evidence would not reasonably justify a conviction for severity level 7 aggravated battery because a rational factfinder could not have found that Anthony's injury qualified as mere bodily harm. As described by Anthony, the bullet struck him “[o]n my left side. My ribs.” The wound required a 1–day hospitalization. The jury was shown a photograph of Anthony lying on the hospital bed with a large bandage on his right side wrapped in gauze. Intravenous lines are shown entering the top of his left hand. At trial, 9 months after the injury, Anthony showed the jury and trial court the resultant scar. As described by the prosecutor, the scar was about 3 to 4 inches long. As Anthony pointed to the scar he testified, “I have no feeling right through here.” Viewed in the light most favorable to Lohf, we conclude the evidence did not warrant an instruction on the lesser included offense. Taking all the evidence together, we are convinced that the offense, if committed, was clearly of the higher degree. See 276 Kan. 758, Syl. ¶ 4.
Nevertheless, assuming there was error by the trial court, the error was harmless. Instructional errors pertaining to lesser included offenses are only reversible if the reviewing court determines there is a “ ‘reasonable probability that the error [affected] the outcome of the trial in light of the entire record.’ “ Simmons, 295 Kan. at 178. Such a probability does not exist in this case.
When outlining the elements of aggravated battery, the trial court provided the jury with a proper definition of the term “great bodily harm.” This instruction read: “The word ‘great’ distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.” In the absence of evidence to the contrary, appellate courts presume that jurors followed the instructions given to them. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). As discussed earlier, there was no evidence of slight or trivial harm caused by the gunshot wound.
We have also reviewed defense counsel's closing argument. In that argument, defense counsel never intimated that Anthony had not sustained great bodily harm. On the contrary, defense counsel emphasized that Lohf never intended to commit great bodily harm but was simply defending himself by firing random, warning shots. We view defense counsel's failure to argue that Anthony did not sustain great bodily harm as a further indication the evidence was clear with regard to that particular element of severity level 4 aggravated battery.
In conclusion, we find no error in the trial court declining Lohf's request to instruct the jury on the lesser included offense of severity level 7 aggravateed battery. Moreover, assuming error, we do not find a “ ‘reasonable probability that the error [affected] the outcome of the trial in light of the entire record.’ “ See Simmons, 295 Kan. at 178.
Refusal to Give a Self–Defense Instruction
On appeal, Lohf contends the district court committed reversible error by refusing to give a self-defense instruction. The State counters that the district court did not err because Lohf's participation in a forcible felony barred him from asserting this defense and, alternatively, even when viewed in a light most favorable to Lohf, the evidence presented at trial did not justify such an instruction.
As discussed in the previous issue, our Supreme Court recently clarified the four-step standard of review in cases involving instructional error. Plummer, 295 Kan. 156, Syl. ¶ 1. With regard to the first step, Lohf requested a self-defense instruction; thus, he properly preserved this issue for review. See 295 Kan. 156, Syl. ¶ 1. At the instructions conference, Lohf argued that the evidence warranted this instruction because he acted in self-defense when Anthony and Austin demanded his money and Austin reached into the car and grabbed him. The State asserted that a self-defense instruction was inappropriate because Lohf used force during the commission of a forcible felony, “[a]ttempted possession of [cocaine] with intent to sell,” and Lohf's use of force was excessive as a matter of law. The trial court denied Lohf's request.
Was a self-defense instruction legally appropriate? First, we review the applicable law relating to self-defense. A defendant is generally “entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory.” State v. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012). Appellate courts view the evidence the defendant claims entitles him or her to a self-defense instruction in a light most favorable to the defendant. 293 Kan. at 974.
In Kansas, “[a] person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.” K.S.A.2010 Supp. 21–3211(a). Deadly force may be used under these circumstances “if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person .” K.S.A.2010 Supp. 21–3211(b).
“To justify a self-defense instruction, a defendant must present some evidence, either through his own testimony or from other witnesses, to support each prong of a two-prong self-defense test.” State v. Lutter, 27 Kan.App.2d 858, 860, 10 P.3d 16,rev. denied 270 Kan. 902 (2000). The first prong involves a subjective standard, which requires the defendant to show that he or she “sincerely and honestly” believed it was necessary to use force in defense of self. McCullough, 293 Kan. at 975. The second prong is an objective standard, which necessitates a showing, by the defense, that a reasonable person in the same circumstances would have perceived self-defense as necessary. 293 Kan. at 975.
Self-defense is not available, however, to a person who is “attempting to commit, committing, or escaping from the commission of a forcible felony.” K.S.A.2010 Supp. 21–3214(a). K.S.A.2010 Supp. 21–3110(9) defines a forcible felony as “any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.” (Emphasis added.)
K.S.A.2010 Supp. 21–3436(a)(14) designates possession of cocaine with intent to sell, a felony under K.S.A.2010 Supp. 21–36a05, as inherently dangerous. Although every item found on the inherently dangerous felony list is not necessarily considered a forcible felony, when determining whether an inherently dangerous collateral felony is a forcible felony, it is appropriate to consider the “ ‘circumstances of the commission of the crime, in addition to the elements of the crime in the abstract.’ “ State v.. Ackward, 281 Kan. 2, 25, 128 P.3d 382 (2006).
The critical question, therefore, is whether possession of cocaine with intent to sell or attempted possession of illegal narcotics with intent to sell under the unique circumstances of this case constitute “forcible” felonies within the meaning of K.S.A.2010 Supp. 21–3110(9).
Lohf argues that, under the circumstances of this case, possession of cocaine with intent to sell was not a forcible felony. Lohf claims that all he had done “at the time he was attacked by [Austin], was ask to speak to Junior, and show Austin and Anthony Wilson that he had $300 in his hand.” The State, on the other hand, claims that Lohf engaged in the commission of a forcible felony because he went to Floyd's house to buy drugs and “he took a loaded gun with him and laid it on the seat next to him.”
Importantly, our Supreme Court has determined that possession of cocaine and attempted possession of marijuana with intent to sell may constitute forcible felonies. In State v. Jacques, 270 Kan. 173, 14 P.3d 409 (2000), a jury convicted Jacques of felony murder with possession of cocaine as the underlying felony. Jacques and Ronald Everitt invented a scheme to purchase cocaine for a third person. After arming themselves with knives, Everitt dropped Jacques off at a nearby store to wait while Everitt conducted the drug transaction. Jacques had been barred from the seller's house. Jacques, however, grew tired of waiting, so he walked to the house. When Jacques knocked on the door, Everitt rushed him, beat him, and threatened to kill him because he felt Jacques' presence would “ ‘kill’ the deal.” 270 Kan. at 176. After Everitt knocked him down and kicked him in the face, Jacques fatally stabbed Everitt.
At trial, Jacques claimed that he stabbed Everitt in self-defense; and after the stabbing, Everitt threatened him with his knife and ordered him to complete the drug transaction, so he complied with Everitt's command. On appeal, Jacques contended that the trial court erred when it refused to give a self-defense instruction because possession of cocaine was not a forcible felony.
Our Supreme Court began its analysis by noting that, like the sale of cocaine, possession of cocaine is an inherently dangerous felony. The court explained:
“In the abstract, possession of cocaine does not involve physical force or violence against a person. However, there is an aura of violence surrounding the possession of illegal drugs. Those in possession of illegal drugs are often susceptible to being robbed or physically harmed by others wanting their drugs or money. Those in possession of illegal drugs are often a threat to others around them as well. Having possession of illegal drugs such as cocaine is often a deadly risk.” 270 Kan. at 180.
The Supreme Court found that the circumstances of Jacques' crime “lent themselves to danger and the threat of violence against others,” as Jacques and Everitt were both carrying knives for protection, both had plans to cheat the third party, and Jacques completed the drug transaction after stabbing Everitt instead of attempting to save his life. 270 Kan. at 180–81. Accordingly, our Supreme Court concluded that the trial court did not err by refusing to provide a self-defense instruction. 270 Kan. at 181.
Like Jacques, the circumstances surrounding Lohf's self-defense claim clearly involved the commission of forcible drug felonies accompanied with the risk of violence. Lohf testified that he brought a loaded firearm to Floyd's house, which he placed on the seat next to his right leg, because drug transactions are dangerous and he wanted to protect himself and the cocaine he had in his vehicle:
“Q. [DEFENSE COUNSEL:] Were you carrying a firearm at that
“A. [LOHF:] Yes.
“Q. [DEFENSE COUNSEL:] Why were you? Why did you have a gun?
“A. Because of what I was doing, it's dangerous.
“Q. In the past have you, I mean, you've sold drugs and bought drugs. Do you have to go to areas of town that might be dangerous?
“A. Yes.
“Q And have you seen other people who are selling or buying drugs with guns?
“A. Yes.”
Similarly, this colloquy occurred between Lohf and the prosecutor during cross-examination:
“Q. [PROSECUTOR:] My question is, sir, you had the gun in the car?
“A. [LOHF:] Right.
“Q. Okay. You set out from your apartment?
“A. Right.
“Q. Driving with the gun?
“A. Correct.
“Q. To protect your drugs?
“A. Right.
“Q. That you had in the car?
“A. Right.
“Q. That you intended to sell?
“A. That's right.
“Q. So you went off to commit a felony to go get more drugs because that's a felony, isn't it?
“A. Yes, it is.
“Q. And so you're there to commit a felony with a gun, and you pull up to this neighborhood?
“A. Yeah.”
We are persuaded that, under the facts of this case, Lohf was engaged in the commission of one or more forcible felonies at the time he claimed self-defense. Accordingly, the trial court did not err when it denied Lohf's request for a self-defense instruction because, under K.S.A.2010 Supp. 21–3214(a), Lohf's participation in a forcible felony barred him from asserting this defense as a justification for his use of deadly force.
Finally, assuming the giving of a self-defense instruction was legally appropriate, the trial court still did not err by refusing to give it because the evidence would not have supported it. In particular, we conclude a reasonable person would not have believed that firing a gun at Anthony and Austin, not once but four times, was necessary to defend against Austin's act of grabbing and pulling on his arm. Lohf testified that neither Anthony nor Austin showed him a weapon, threatened him with a weapon, or indicated that they had a weapon. As a result, there was insufficient evidence to prove the second prong—the objective standard—of the self-defense test, which necessitates a showing by the defense that a reasonable person in the same circumstances would have perceived self-defense as necessary. See McCullough, 293 Kan. at 975.
For all of these reasons, we find the trial court did not err in refusing to give the jury a self-defense instruction as requested by Lohf.
Jury Instruction Regarding the Determination of Guilt or Innocence
Lohf contends the district court improperly diluted the State's burden of proof and violated his constitutional presumption of innocence when it provided the jury with the following instruction, set forth in Instruction No. 4: “ Your only concern in this case is determining whether the defendant is guilty or not guilty of the crime or crimes charged. The disposition of the case thereafter is a matter for determination by this court.” (Emphasis added.) Lohf further asserts that the district court compounded this error when it provided the jury with Instruction No. 5, which stated:
“The State has the burden of proving Timothy Lohf is guilty. Timothy Lohf 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 test you must use in determining whether Timothy Lohf is guilty or not guilty is this: 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 Timothy Lohf not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find Timothy Lohf guilty.”
Lohf properly preserved this issue for review when he objected to the giving of Instruction No. 4 at the instruction conference. Consequently, our court must determine whether Instruction No. 4 was “legally appropriate.” See Plummer, 295 Kan. 156, Syl. ¶ 1. In making this determination, appellate courts “examine the instructions as a whole, rather than isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case.” State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010).
The instructions Lohf challenges were based upon PIK Crim.3d 51.10 and PIK Crim.3d 52.02. “The use of PIK instructions, while not mandatory, is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. [Citation omitted.]” State v. Carter, 284 Kan. 312, 330, 160 P.3d 457 (2007). Significantly, PIK Crim.3d 51.10, the basis for Instruction No. 4, has been consistently approved by our Supreme Court and is typically given because juries should not consider the ultimate disposition of the case. See State v. Raskie, 293 Kan. 906, 922, 269 P.3d 1268 (2012); State v. Yardley, 267 Kan. 37, 42, 978 P.2d 886 (1999); State v. Osburn, 211 Kan. 248, 254, 505 P.2d 742 (1973). Similarly, our Supreme Court has found that PIK Crim.3d 52.02, the basis for Instruction No. 5, properly advises the jury of the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997).
Nevertheless, Lohf contends that PIK Crim.3d 51.10 and PIK Crim.3d 52.02 are legally inappropriate because they describe “the jury's function as deciding between two options: guilty or not guilty,” when, in actuality, the jurors are to presume his innocence unless they find that the State has proven every element of the charged crimes beyond a reasonable doubt.
As Lohf concedes, in Raskie our Supreme Court rejected a similar challenge to PIK Crim.3d 51.10 and held that “PIK Crim.3d 51.10, which instructs a jury to not consider the penalty, does not shift the burden of proof.” 293 Kan. 906, Syl. ¶ 7. Lohf argues that this case is distinguishable from Raskie because, unlike Raskie, he objected to Instruction No. 4 and the fact that Instruction Nos. 4 and 5 presented “contradictory directions to the jury established a real possibility that the instructions could have misled or confused the jury.” According to Lohf, Raskie is limited solely to cases reviewed for clear error because, in the absence of an objection, the court's analysis is restricted to a determination of whether “there [was] a real possibility the jury could have reached a different verdict but for the instruction.” Alternatively, Lohf contends that Raskie was wrongly decided; thus, he asks this court to not follow precedent.
After the parties completed briefing, our Supreme Court issued State v. Stevenson, 297 Kan. 49, Syl. ¶ 3, 59, 298 P.3d 303 (2013), which essentially holds that regardless of the standard of review employed, “PIK Crim.3d 51.10 ... does not dilute the State's burden of proof and is not erroneous” because “a jury must choose between two options—guilty or not guilty—in order to reach a verdict.” Furthermore, Stevenson challenged PIK Crim.3d 51.10 on the same grounds as Lohf. In rejecting the defendant's argument, our Supreme Court determined that PIK Crim.3d 51.10 and PIK Crim.3d 52 .02 provide “accurate statements of the law, are not in conflict, and, when read together, accurately instruct[ ] the jury on the State's burden of proof.” 297 Kan. at 59–60.
While, similar to Raskie, our Supreme Court employed a clearly erroneous standard of review under K.S.A. 22–3414(3) in Stevenson, the first step of this standard involves determining “whether there was any error at all.” Stevenson, 297 Kan. at 58. Only if “it is determined there was error” does an appellate court assess “ ‘whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.’ “ 297 Kan. at 58. Consequently, finding no error associated with the district court's use of PIK Crim.3d 51.10, our Supreme Court did not entertain the second step of the analysis. 297 Kan. at 58–60. Thus, it appears that Raskie and Stevenson apply equally to this case.
We are duty bound to follow precedent from our Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan. –––– App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. (May 4, 2012). In the absence of such an indication, it is appropriate to decline Lohfs invitation to revisit the holdings in Raskie and Stevenson. Accordingly, because the jury instructions in this case properly and fairly stated the law, the district court did not erroneously instruct the jury as to Lohf's constitutional presumption of innocence or the State's burden of proof.
Use of Criminal History to Enhance Sentence
Lohf contends the trial court violated his constitutional rights as described in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to enhance his sentence without requiring the State to prove his prior convictions to a jury beyond a reasonable doubt. This argument involves a question of law over which this court exercises de novo review. State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).
As Lohf acknowledges, this issue was previously decided and rejected by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). In Ivory, the court held that the use of a defendant's criminal history to calculate the presumptive Kansas Sentencing Guidelines Act sentence does not violate due process as interpreted by Apprendi, 273 Kan. at 46–48.
As explained above, this court is duty bound to follow precedent from our Supreme Court absent some indication that the court is departing from its previous position. Ottinger, 46 Kan.App.2d at 655. There is no evidence to suggest that the Kansas Supreme Court is considering a departure from its holding in Ivory. See State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012) (affirming Ivory ). Thus, Lohf's argument must fail.
Affirmed.