Opinion
No. 109,468.
2014-10-10
STATE of Kansas, Appellee, v. Sean B. WINDSOR, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.Samuel Schirer and Carol Longenecker Schmidt, of Kansas Appellate Defender Office,, for appellant, and Sean B. Windsor, appellant pro se.Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Samuel Schirer and Carol Longenecker Schmidt, of Kansas Appellate Defender Office,, for appellant, and Sean B. Windsor, appellant pro se. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Sean B. Windsor was in a hotel room when the manager called the police to assist in evicting the hotel guest and the other occupants for staying past checkout. In the process of evicting all of the occupants in the room, the police found three handguns in a bag subsequently determined to be Windsor's. Windsor now appeals his convictions for two counts of criminal possession of a firearm alleging the district court committed nine errors. We find no error was committed by the district court, and we affirm.
Facts
Police were called to the Cambridge Suites on February 7, 2010, in order to evict Abraham Dozal for failing to timely leave his hotel room. Five people were in the room including Dozal and Windsor. The room's occupants were temporarily detained so police could check for outstanding warrants.
After arriving on the scene, officers observed five individuals in the room; two bags, one of which was a computer bag; a printer; and a plastic bag with paper money orders in it. Officer Bruce Mackey then asked the people in the room who owned the two bags, including the computer bag, near the front of the room. Officer Mackey did not receive a response from anyone. He then asked each person individually if the bags belonged to them. Windsor declined ownership. Officer Mackey looked through the computer bag to see who it belonged to and found various items including three handguns, legal documents, and photographs of Windsor holding two guns, tying the computer bag to Windsor.
Immediately, Windsor claimed ownership of the bag but denied owning or possessing the handguns. Windsor was charged with three counts of criminal possession of a firearm.
Windsor filed a motion to suppress all evidence found in the bags, arguing Officer Mackey lacked probable cause to search the bags and that no exception to the warrant requirement applied. After extensive rounds of pleadings and testimony, the district court ultimately denied Windsor's suppression motion, finding Windsor lacked a reasonable expectation of privacy in the bag, failed to assert ownership of the bag, and the police had the right to check the bag to determine ownership.
At trial, Dozal testified he had the guns in a nightstand in the hotel room. Tabetha Andrews, one of the five occupants in the room, testified she saw Alexandria Ahmad, another occupant in the room, place the guns in Windsor's bag as the group prepared to leave the hotel room, but Windsor was not in the room at the time.
Windsor was convicted on two counts of criminal possession of a firearm and acquitted on one count. Windsor was sentenced to a controlling term of 23 months' imprisonment and timely appealed.
Analysis
Windsor presents nine issues for us to resolve with this appeal:
• Did the district court err by not suppressing evidence discovered in Windsor's computer bag?
• Did the district court err by not suppressing evidence of the contents of the plastic bag?
• Did the district court admit improper propensity evidence contrary to K.S.A.2013 Supp. 60–455?
• Did the district court engage in misconduct or give the jury improper instructions?
• Did the district court err by not instructing the jury on possession as requested by Windsor?
• Did the State commit prosecutorial misconduct?
• Was Windsor deprived of counsel in violation of the Sixth Amendment to the United States Constitution?
• Did cumulative error deprive Windsor of a fair trial?
• Did the district court violate Windsor's rights under Apprendi?
Did the District Court Err by Not Suppressing Evidence Discovered in Windsor's Bags?
In his counseled brief, Windsor argues he had an expectation of privacy in the computer bag and the results of the warrantless search of the bag should have been suppressed. In a supplemental pro se brief, Windsor asserts an additional expectation of privacy in the plastic bag that contained the money orders. The State did not address the argument Windsor raised in his supplemental pro se brief because it “[did] not appear to add any arguments necessitating additional argument.”
Does Substantial Competent Evidence Support the District Court's Denial of Windsor's Motion to Suppress?
Appellate courts engage in a two-step analysis when a defendant's motion to suppress evidence is denied. “Without reweighing the evidence, the appellate court reviews the district court's findings to determine whether they are supported by substantial competent evidence. The appellate court then reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard.” State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect against unreasonable searches and seizures. See, e.g., State v. Garza, 295 Kan. 326, 331–32, 286 P.3d 554 (2012). On a motion to suppress, the State bears the burden of proving the lawfulness of the search or seizure to the district court by a preponderance of the evidence. See K.S.A. 22–3216(2); State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).
The district court's factual findings are supported by substantial competent evidence. Based on Windsor's own testimony, the district court ruled Windsor was not an overnight guest in the hotel room. The court acknowledged conflicting testimony regarding which of the occupants disclaimed ownership of the bag, but the court found it more credible that Windsor “failed to assert ownership of the bag when questioned” rather than that Windsor was in a “closet area” being questioned separately and did not hear Officer Mackey ask the others about the bag's ownership.
The district court discussed whether Windsor abandoned the bag, thereby giving police the ability to search the bag as an object in the room they had been asked to help clear. We find there is no need to discuss the issue of abandonment as the district court also found Windsor was in a hotel room past the checkout time and, therefore, he lacked a reasonable expectation of privacy in the hotel room and its contents. The room was no longer rented, and the owner of the hotel had a right to secure the property with the assistance of police by evicting the nonpaying room's occupants. Under these facts, the district court ruled the police “were justified in checking the bags for ownership and contents.”
Windsor's challenge of this conclusion is flawed. The district court did not create a new exception for search warrants under the Fourth Amendment by finding the police could search the bags left in a room after the checkout time to determine ownership. Here, the district court ruled the occupants had no right to remain in the room; there was no expectation of privacy as the police were lawfully in the room assisting the owner of the property, and in the course of evicting the occupants the police could determine ownership of the bag. Windsor was a social guest of Dozal. A social guest cannot exert a greater expectation of privacy than his or her host. See State v. Huff, 278 Kan. 214, Syl. ¶ 6, 92 P.3d 604 (2004) (social guests only have the standing that their host has). A hotel guest who stays in a rented room beyond the rental period has no reasonable expectation of privacy in the room. See State v. Curtiss, No. 93,707, 2006 WL 3589795, at *3 (Kan.App.2006) (unpublished opinion) (citing United States v. Rahme, 813 F.2d 31, 34 [2d Cir.1987] ), rev. denied 283 Kan. 932 (2007).
The district court did not err in ruling the police, while evicting occupants who had stayed in the room beyond the checkout time without permission to extend the stay, were justified in searching the computer bag to see who it belonged to.
Did the District Court Err by Not Suppressing Evidence Discovered in the Plastic Bag?
In his uncounseled brief, Windsor complains about the admissibility of the plastic bag with money orders in it. The district court never ruled on the admissibility of the money orders in the plastic bag. Additionally, Windsor was not charged with a crime associated with the plastic bag containing the money orders. Windsor has no standing to make this argument as he was in the room with a hotel guest who had overstayed his rental period right to possession of the room. We find no basis for Windsor's claim of error about the plastic bag with money orders and decline to address his argument further.
Did the District Court Admit Improper Propensity Evidence Contrary to K.S.A.2013 Supp. 60–455?
Windsor argues the district court violated K.S.A.2013 Supp. 60–455 when it admitted photographs found in the computer bag of him “posing with handguns at a time when he was criminally prohibited from doing so.”
An appellate court's rubric for evaluating the admissibility of K .S.A.2013 Supp. 60–455 evidence requires that “(1) the evidence be relevant to prove a material fact; (2) the material fact be disputed; and (3) the probative value of the evidence not be substantially outweighed by the risk of undue prejudice. [Citations omitted.]” State v. Smith, 296 Kan. 111, 123, 293 P.3d 669 (2012); see State v. Prine, 297 Kan. 460, 475–79, 303 P.3d 662 (2013) (noting the rubric has not changed for evidence admitted under subsections (a) and (b) after K.S.A. 60–455 was amended in 2009). A district court's materiality determination is reviewed de novo. State v. Wilson, 295 Kan. 605, Syl. ¶ 3, 289 P.3d 1082 (2012). A district court's determination of probative value and the weighing of probative value against the potential for undue prejudice are reviewed for an abuse of discretion. 295 Kan. 605, Syl. ¶ 3. “If K.S.A. 60–455 evidence is admitted, a district judge also must give a limiting instruction to ensure the jury considers the evidence only for the specific reason or reasons it is admitted.” Smith, 296 Kan. at 124; see K.S.A. 60–406.
“(a) ... [E]vidence that a person committed a crime or civil wrong on a specified occasion[ ] is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) ... [S]uch evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A.2013 Supp. 60–455(a), (b).
Here, the district court ruled K.S.A.2013 Supp. 60–455 did not apply because the photographs were brought to the scene by the defendant. However, apparently out of an abundance of caution, the district court engaged with counsel in the K.S.A.2013 Supp. 60–455 balancing test of probative value against the potential for undue prejudice and issued a limiting instruction. The Kansas Supreme Court has favorably noted that issuing a limiting instruction out of an abundance of caution—even when it is not legally required—helps offset any potential prejudice. State v. Gander, 220 Kan. 88, 90–91, 551 P.2d 797 (1976) (where district court issued a limiting instruction in case where weapons violation was joined with battery and robbery counts, the instruction was not required but did “help to offset any prejudice resulting from the joinder”). Windsor offers no legal authority to support his implicit argument the district court's limiting instruction means the evidence was actually admitted under K.S.A.2013 Supp. 60–455 after the district court explicitly ruled that K.S.A.2013 Supp. 60–455 did not apply.
The pictures depict Windsor holding guns with no time frame given as to when the photos were taken and do not constitute evidence of a crime. The photos are not K.S.A.2013 Supp. 60–455 evidence, and their admission was not barred by K.S.A.2013 Supp. 60–455. The photos were relevant to show Windsor's ownership of the bag.
Did the District Court Engage in Misconduct or Give the Jury Improper Instructions?
Windsor argues the district court's description of “reasonable doubt” during voir dire robbed the phrase of all objective meaning and denied him a fair trial. Windsor also argues the district court's description of the jury's duty after it had been impaneled incorrectly instructed the jury that it must return a verdict and foreclosed the possibility of a hung jury, which also denied him a fair trial by compromising his right to a unanimous jury.
Standard of Review
“An appellate court has unlimited review of the particular facts and circumstances of each case to determine whether judicial comments, other than jury instructions, rise to the level of judicial misconduct. The complaining party has the burden to establish that misconduct occurred and that the misconduct prejudiced the party's substantial rights. If a proper and reasonable interpretation will render the judge[']s remark unobjectionable, the remark cannot be found to be prejudicial.” State v. Lizama–Lazo, No. 108, 318, 2013 WL 3491290, at *3 (Kan .App.2013) (unpublished opinion) (citing State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 [2010] ), rev. denied 298 Kan. –––– (February 12, 2014).
Reasonable Doubt
The district judge informed the jury that Windsor was presumed innocent. He then said:
“The burden of proof falls on the State of Kansas. The State must present enough evidence to overcome that presumption of innocence beyond a reasonable doubt. There is no definition of reasonable doubt. I'm going to say that again. There is no definition under the law of reasonable doubt. You will be considered to be reasonable people and able to define reasonable doubt for yourselves.”
The Kansas Supreme Court has frequently indicated a definition of “reasonable doubt” is not necessary. See, e.g., State v. Wilson, 281 Kan. 277, Syl. ¶ 4, 130 P.3d 48 (2006) (“No definition or explanation can make any clearer what is meant by the phrase ‘reasonable doubt’ than that which is imparted by the words themselves”); State v. Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003) ( “ ‘Efforts to define reasonable doubt, other than as provided in PIK Crim.3d 52.02, usually lead to a hopeless thicket of redundant phrases and legalese, which tends to obfuscate rather than assist the jury in the discharge of its duty.” [Quoting State v. Acree, 22 Kan.App.2d 350, 356, 916 P.2d 61, rev. denied 260 Kan. 995 (1996) ] ).
Here, the district court's comment can properly and reasonably be interpreted to express the lack of an explicit definition for the phrase “reasonable doubt” beyond what the words themselves impart to the jurors. That is an accurate statement of the law in accordance with our Supreme Court's observations and consequently Windsor's objection has no support. There was no misconduct by the district court with this instruction.
Duty to Consider the Evidence and Render a Verdict
After the jury was impaneled, the district judge said,
“I have some instructions to give you and admonitions before we begin with opening statements. I will be the judge of the law in this case. I decide what evidence can be presented. You will be the judge of the facts. You must determine what actually happened. You must determine a verdict of guilty or not guilty based on the evidence presented in this trial.”
Here, the district judge's instructions were educational and informed the jury he was the gatekeeper of the law and the jury's role was to be the factfinder. The district court instructed the jury it must use the evidence presented at trial to determine “what actually happened” in the process of arriving at its verdict. This was an accurate statement of the judicial process and the jury's responsibility during the trial to determine Windsor's innocence or guilt. The district court's instruction was proper, educational, and not misconduct.
Did the District Court Err by Not Defining for the Jury the Meaning of “Possession”?
In instructing the jury on criminal possession of a firearm, Windsor requested the district court give his instruction defining the meaning of “possession” for the jury. The district court denied Windsor's request and instructed the jury using PIK Crim.3d 64.06.
In support of his position, Windsor submits State v. Neal, 215 Kan. 737, 740, 529 P.2d 114 (1974). However, in Neal, Neal claimed his possession of the gun was innocent as he was handling the gun for the benefit of someone else. The court ruled he was entitled to an instruction that fit his theory of defense. That is not the case here, as Windsor claimed the guns were put in his bag by others and not by him. This was not an issue of admitting innocent possession, but a case of denying possession at all. Thus, Neal is factually distinguishable and not persuasive.
With no definition for possession, Windsor argues the district court's elements instruction on the crime of criminal possession of a firearm was not legally appropriate and requires reversal.
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (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. denied 132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Windsor's request to define possession has preserved the issue for appellate review. See K.S.A. 22–3414(3). Next, we must consider if the jury instruction given was legally appropriate. Here, the district court used the PIK Crim.3d 64.06 to define criminal possession of a firearm and it does not contain a definition of possession, stating:
“[T]he defendant is charged with criminal possession of a firearm. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly possessed a firearm ...;
“2. That the defendant within 10 years preceding February 7, 2010[,] had been convicted of a felony, and
“3. That this act occurred on or about February 7, 2010, in Sedgwick County, Kansas.”
The use of PIK instructions “is strongly recommended” and “should be the starting point in the preparation of any set of jury instructions,” State v. Mitchell, 269 Kan. 349, Syl. ¶ 4, 7 P .3d 1135 (2009). When the facts of the case support using an unmodified PIK instruction, it is not error for the district court to use that instruction. See State v. Bryant, 285 Kan. 970, 983–84, 179 P.3d 1122 (2008) (finding no error in using PIK instruction based on “the straightforward facts of th[e] case”); State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004) (“Modifications or additions [to a PIK instruction] should only be made if the particular facts of a case require it.”). Windsor's argument is based on the fact the instruction did not indicate to the jury possession must be intentional and knowing, but PIK Crim. 3rd 64.06 requires the jury to find “knowing possession.” Thus, the district court followed the PIK instruction and its instruction to the jury was legally appropriate. Our inquiry per Ward stops here.
Did the State Commit Prosecutorial Misconduct?
Windsor argues the State engaged in a pattern of misconduct involving four separate statements during cross-examination of a witness and closing arguments.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012). When determining whether misconduct was prejudicial, the appellate court considers “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). No one factor is controlling. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
Windsor's first challenge involves the prosecutor's questioning of a witness by asking her whether she knew something about the writing pen he was holding, apparently in an attempt to show the jury she had not been rehabilitated on redirect-examination. Windsor argues this was inflammatory, an improper comment on the credibility of the witness, and a “cheap trick” to “manipulate [the witness'] honest statements into lies.” However, in the context of recross-examining a witness the prosecutor's questions were not gross or flagrant and Windsor has failed to demonstrate ill will. The questions were proper and within the wide latitude prosecutors are allowed to operate within during the trial.
Windsor's second challenge goes to the prosecutor's statement during closing that “it[ was] fully obvious that those guns belong to Mr. Windsor and he knew they were in there,” characterizing the statement as an improper comment on the defendant's guilt. In context, however, the prosecutor had just summarized all of the evidence tending to prove the computer bag—and the guns inside it—belonged to Windsor. The statement is therefore indistinguishable from the phrase Windsor suggests would have been proper: “[T]he evidence shows [the] defendant's guilt.” Here, the prosecutor's statement is clearly lacking any ill will or gross and flagrant character. In State v. Peppers, 294 Kan. 377, 399–400, 276 P.3d 148 (2012), the Kansas Supreme Court considered the allegations of prosecutorial misconduct where the prosecutor told the jury to convict the defendant, “ ‘Because he did it,’ “ and also told the jury, “ ‘[Y]ou need to look him in the eye and say you are guilty of murder and you are guilty of attempted murder because he is.’ “ The prosecutor's statement here was within the wide boundary allowed and is even more innocuous than the statements made in Peppers.
Windsor's third challenge involves the prosecutor's use of the phrase “an abiding interest” in possessing the guns. Here, the photographs were entered to show the photographs were found in his computer bag and reflected him holding guns similar to those found in the computer bag, not that he had committed a prior crime. The prosecutor's statement was not improper as he was rebutting Windsor's closing argument claiming he was in the “wrong place at the wrong time.”
Windsor's fourth challenge argues that when the prosecutor commented the State had “established as part of its burden to meet beyond a reasonable doubt that the contrary evidence is simply not credible as the State's evidence was credible beyond a reasonable doubt,” the State created an impermissible attempt to lower its burden of proof to a credibility threshold. In context, the argument reflects the State was informing the jury its evidence was credible and met the “beyond a reasonable doubt” burden of proof. The prosecutor's statements are easily distinguishable from the “gut-level intuition” and “commonsense burdens” Windsor compares them to. Windsor's argument fails as the prosecutor's statement was a correct argument on the law and within the wide boundary prosecutors are allowed.
Given the wide latitude within which prosecutors are allowed to operate, the four challenged statements Windsor claims to be problematic do not fall outside of that discretionary range. Windsor's argument fails.
Was Windsor Deprived of Counsel in Violation of the Sixth Amendment to the United States Constitution?
Windsor argues that after the case was submitted to the jury and his trial counsel had to leave for a medical reason, his replacement counsel was not sufficiently aware of the case and deprived him of competent counsel in violation of his rights under the Sixth Amendment to the United States Constitution. Specifically, he argues the attorney appointed to represent him on short notice after his previous appointed counsel left for surgery was no better suited to represent him than “the first civilian spectator that walked into [the] courtroom.”
The extent of a defendant's right to counsel is reviewed de novo. Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2009) (in the context of a collateral attack).
A defendant has a Sixth Amendment right to counsel during all critical stages of a felony prosecution. Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012). A district court's response to jury questions during deliberations constitutes a critical stage of prosecution. State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 (2000) (in the context of requiring the defendant's presence absent a voluntary waiver). Implicit in the Sixth Amendment right to counsel is the right to competent representation. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel, a defendant must show: (1) counsel's performance fell below objective reasonable standards; and (2) but for counsel's deficient performance, there was a reasonable likelihood of a different outcome. Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985). A defendant may avoid the burden of demonstrating prejudice where there is a total breakdown in the adversarial process. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Windsor does not make any showing that his replacement counsel's performance was deficient. There is no evidence Mr. Adams was not competent. He conferred with the district court, Windsor's trial counsel, and Windsor. There is no evidence he did not vigorously and zealously advocate for his client during those discussions. Where, as here, “counsel competently agreed to the district court's answer to the jury's question, where no new law was given, and where the court simply directed the jury back to the jury instructions,” there is no basis in the recorded evidence of ineffective assistance of counsel. See Davis v. State, No. 94,330, 2007 WL 1109528, at *4 (Kan.App.2007) (unpublished opinion) (citing State v. Sims, 33 Kan.App.2d 762, 765, 108 P.3d 1007, rev. denied 280 Kan. 990 [2005] ), rev. denied 284 Kan. 947 (2007).
Windsor fails to demonstrate how the replacement counsel failed to be of assistance to him or caused a total breakdown in the adversarial process. In Cronic, the United States Supreme Court signaled that threshold would be met by the failure of counsel to cross-examine witnesses and when counsel is absent or unable to assist the accused. 466 U.S. at 659 n. 25. Windsor fails to demonstrate circumstances of that magnitude were present here as counsel was present with Windsor and competently involved in the short hearing when the district court was called upon to answer two questions from the jury.
Windsor's Sixth Amendment right to competent representation by counsel was not violated.
Did Cumulative Error Deprive Windsor of a Fair Trial?
Windsor argues the cumulative effect of trial errors denied him a fair trial. Cumulative trial errors, when considered collectively, may require reversal of the defendant's convictions when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). Cumulative error, however, “will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Nor will the doctrine apply “if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, Syl. ¶ 15, 209 P.3d 675 (2009).
We have found no errors by the district court; the cumulative error analysis provides no relief for Windsor. Did the District Court Violate Windsor's Rights Under Apprendi?
Windsor's final argument is the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it considered his prior convictions in determining his sentence without requiring those prior convictions to be included in the criminal complaint or proved to a jury beyond a reasonable doubt.
The Kansas Supreme Court has consistently rejected this argument. See, e.g., State v. Snellings, 294 Kan. 149, 167, 273 P.3d 739 (2012) (“the use of prior convictions for sentencing enhancement is constitutional”); State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394–96, 184 P3d 903 (2008); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
This court is duty bound to follow the precedent set by our Supreme Court absent some indication it intends to depart from its prior position. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Windsor points this court to no such indication. Instead, he acknowledges this issue has been adversely decided but includes it to preserve it for federal review.
Conclusion
While applying our standard of review for each of Windsor claims, we find the district court did not err. We find no error by the district court on any of the claims made and likewise find no cumulative error. Windsor raises an Apprendi issue to preserve his federal rights while recognizing we must follow Supreme Court precedents. Windsor's two convictions for criminal possession of a firearm are affirmed.
Affirmed.