NOT DESIGNATED FOR PUBLICATION. No. 112,549 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, WILLIE FLEMING, Appellant.

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1 NOT DESIGNATED FOR PUBLICATION No. 112,549 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. WILLIE FLEMING, Appellant. MEMORANDUM OPINION Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed July 22, Affirmed. Peter Maharry, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee. Before LEBEN, P.J., STANDRIDGE and ARNOLD-BURGER, JJ. ARNOLD-BURGER, J.: A jury convicted Willie Fleming of aggravated robbery and aggravated burglary. He raises three issues on appeal. First, he submits that the district court erred when it declined to give an instruction that he did not request. Because the district court gave the jury an instruction that Fleming did request that contained the language about which he now complains, we find this to be invited error and decline to consider his objection to the instruction on appeal. Next, Fleming argues that the district court erred when it failed to give the jury an instruction regarding sympathy and prejudice. But such instructions have been disapproved in Kansas except in rare circumstances. We find that the district court did not err in finding that the facts of this 1

2 case were not a sufficiently rare circumstance to warrant such an instruction. Finally, Fleming contends that the district court erred when it increased his sentence based on his criminal history in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. Because our Supreme Court has repeatedly found this not to be a constitutional violation, Fleming's final claim also fails. Accordingly, we affirm the district court. FACTUAL AND PROCEDURAL HISTORY One evening, Carrington Dean and Quintez Secka were startled awake by the sounds of intruders entering the home in which Secka lived and Dean was visiting. After entering the home, two of the intruders ran up the stairs and entered the room in which Dean was sleeping. Dean was able to see the men and described them as black men, one of whom had dreadlocks, while the other had short hair, wore a bandana around his face, and carried a gun. The men removed Dean from the bed, hit him in the head with a gun, and began asking him, "Where's the money, where's the weed, where's the safe[?]" After several minutes of questioning, the man with the short hair gave his gun to the man with dreadlocks and left to conduct a search of the other bedrooms. While the man with the dreadlocks prevented Dean from leaving the room, he called out to his partner, identifying him by the name Willie. At some point, the man with dreadlocks who had remained with Dean determined Willie had left the house. He told Dean to stay put for 5 minutes, and then the man with dreadlocks ran out of the house. After waiting as instructed, Dean got up, realized that his cell phone had been taken, and ran out of the house to find someone with a phone so he could call the police. Dean found a woman outside of the house walking her dog; he borrowed her cell phone and called the police. 2

3 Meanwhile, when Secka heard the intruders enter Dean's room and begin threatening Dean, he hid under his bed until he was certain the intruders were gone. Because he was under his bed, Secka could not see what the men looked like. He could tell, however, that the men were searching through his room and could hear them talking about taking various items. After the intruders left, Secka and Dean each noticed that they had property missing. Dean testified at trial that his wallet and cell phone had been taken from the night stand next to his bed. Secka testified that a number of items were missing from his room including some clothing, his keys, and a purse that belonged to his girlfriend. Additionally, Secka's roommate, Jamal Davis, testified that when he came home from work after the burglary, he was missing a television, laptop computer, watch, shoes, and jewelry. Police eventually identified Fleming and several others as the individuals involved in the burglary. Fleming was arrested and charged with aggravated robbery for taking a cell phone and wallet from the person or presence of Dean, aggravated burglary, and the theft of a television, PlayStation, laptop computer, and watches from Davis. At the close of Fleming's trial, he requested that the district court issue an instruction reminding the jurors that they must not allow sympathy or prejudice to influence their decision in the case. The district court declined to give the instruction. The jury found Fleming guilty of aggravated robbery and aggravated burglary, but not guilty of theft. Fleming now appeals. 3

4 ANALYSIS The district court did not err when it instructed the jury that to convict Fleming of aggravated robbery it must find that he "took property from the person or presence of Dean." In his first argument on appeal, Fleming claims that the district court erred when it issued a jury instruction on aggravated robbery that was broader than the charge set out in the complaint against him. Fleming did not object to the use of the instruction below. Because of this, Fleming's claim will be reviewed to determine whether the issuance of the instruction was clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). This court uses a two-step process to determine whether a challenged instruction was clearly erroneous. First, it considers whether there was any error at all by considering whether the instruction at issue was both legally and factually appropriate. If the court finds error, it then must determine whether it is firmly convinced that the jury would have reached a different verdict without the error. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484, cert. denied 135 S. Ct. 728 (2014). These determinations are subject to unlimited review based on the entire record. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). Fleming's precise complaint is that the aggravated robbery jury instruction should have specified the property that Fleming was charged with having taken from the person or presence of Dean. Such specificity was necessary because the complaint alleged that Fleming committed aggravated robbery when he took a cell phone and wallet from Dean's person or presence, but there was evidence introduced during the trial that additional items were taken from the home while Dean was inside. Thus, without explicit instruction, the jury could have reasoned that the taking of other items while Dean was present in the house was sufficient evidence on which to convict Fleming of the charge without coming to an agreement that Fleming took Dean's wallet and cell phone. 4

5 The State responds by asking this court to decline to consider this issue because, if there was error, Fleming invited it. Looking at the record, it is clear that both the State and Fleming, in their proposed instructions, asked that the district court use the aggravated robbery pattern instruction PIK Crim. 4th As proposed by Fleming, the instruction read: "The defendant is charged in Count I with aggravated robbery. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: 1. The defendant knowingly took property from the presence of Carrington Dean. 2. The taking was by threat of bodily harm to Carrington Dean. 3. The defendant inflicted bodily harm upon Carrington Dean. 4. This act occurred on or about the 12th day of December, 2012, in Johnson County Kansas." The instruction that the district court issued was similarly based on PIK Crim. 4th , and read in the relevant part: "To establish this charge, each of the following claims must be proved: 1. The defendant knowingly took property from the person or presence of Carrington Dean." The only difference between Fleming's proposed instruction and the instruction that the district court ultimately issued is that the district court's instruction allowed the jury to find that property was taken from either the person or the presence of Dean. Given that taking from the presence is the broader of the two concepts and can reasonably include taking from the person, it is clear that the district court's instruction did not expand Fleming's proposed instruction. Even more relevant to our consideration of whether any error was invited, the precise wording that Fleming complains about on appeal use of the word "property" rather than cell phone and wallet was the exact wording he proposed. 5

6 Because any error was invited by Fleming when he proposed an aggravated robbery instruction that required the jury to find that property had been taken from the presence of Dean, we decline to consider the merits of this issue on appeal. See State v. Jones, 295 Kan. 804, , 286 P.3d 562 (2012). The district court did not err in refusing to give a sympathy and prejudice instruction to the jury. Fleming next argues that the district court erred when it declined to give the sympathy and prejudice instruction that he requested. Fleming objected to the district court's decision not to include this instruction, so the standard of review here differs from that used to evaluate the previous issue. When a defendant objects to the district court's failure to issue a proposed instruction, this court uses a multistep analysis on 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[.]"state v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012). The sympathy and prejudice jury instruction that was once PIK Crim. 3d 51.07, the instruction at issue here, "has been disapproved for general use and deleted from the Pattern instructions." State v. Baker, 281 Kan. 997, 1004, 135 P.3d 1098 (2006). Our Supreme Court has concluded that it is only in rare instances, under "very unusual circumstances" that the instruction should be given. 281 Kan. at

7 In Baker, the Supreme Court concluded that the circumstances of the case were not sufficiently unusual as to warrant giving the sympathy and prejudice instruction where Baker was accused of murdering a paraplegic man in his home at point blank range, ostensibly because the victim would not tell Baker where his sister was. 281 Kan. at Similarly, in State v. Reser, 244 Kan. 306, , 767 P.2d 1277 (1989), our Supreme Court concluded that the district court was correct not to give a sympathy and prejudice instruction because the facts of the case a 39-year-old man repeatedly raped his 14-year-old stepdaughter leaving her suffering from posttraumatic stress disorder were not so unusual as to warrant the instruction. If the facts of Baker and Reser were not sufficiently atrocious or unusual to warrant a sympathy and prejudice instruction, the simple fact that this case involved a home invasion, even if one of the victims suffered minor injuries in the process, cannot possibly qualify as so unusual as to require the instruction here. The district court did not err when it refused to give this instruction because it was not factually appropriate. The district court did not err when it used Fleming's prior convictions to increase his sentence without first requiring them to be proven to a jury beyond a reasonable doubt. Finally, Fleming argues that, based on the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when the district court increased his sentence, based on his criminal history, without first submitting the issue to a jury to be proved beyond a reasonable doubt. However, using a defendant's criminal history to calculate the defendant's sentence does not violate due process under Apprendi. State v. Williams, 299 Kan. 911, 941, 329 P.3d 400 (2014) (reaffirming State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 [2002]). Absent some indication the Kansas Supreme Court is departing from its previous position, the Court of Appeals is duty bound to follow the Supreme Court's precedent. State v. Belone, 7

8 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. (September 14, 2015). Accordingly, Fleming's claim of error fails. Affirmed. * * * LEBEN, J., concurring: The majority has applied the invited-error doctrine, altogether precluding review of the defendant's claim of jury-instruction error. That seems a permissible thing for an appellate court to do since the defendant here didn't merely fail to object to the trial court's instruction but actually requested an instruction that included the phrasing he now claims was improper. In a similar case, State v. Logsdon, 304 Kan. 3, 41, 371 P.3d 836 (2016), the Kansas Supreme Court applied the invited-error doctrine and declined to consider an instruction-error claim where the defendant had requested the instruction that he later claimed to be in error. But in Logsdon, the defendant apparently made no argument on appeal against application of the invited-error doctrine. 304 Kan. at 41 (noting that Logsdon did not "explain why his explicit request for the [erroneous instruction] does not preclude our review"). In our case, defendant Fleming devoted several pages of a reply brief to the invited-error issue. And in another recent case, State v. Dern, 303 Kan. 384, , 362 P.3d 566 (2015), our Supreme Court explicitly left open whether the invited-error doctrine may be applied to preclude review of jury-instruction error when the erroneous instruction was requested by the defendant. So, while appellate courts may apply the invited-error doctrine, as in Logsdon, they might not be required to, as in Dern. Even in Logsdon, the court said it was declining to review the argument based on the invited-error doctrine, not that it couldn't review the jury-instruction error. 304 Kan. at 41. 8

9 And there are potential reasons we might not want to apply the invited-error doctrine to a claim of jury-instruction error. First, a statute, K.S.A Supp (3), tells us how to review such claims: "No party may assign as error the giving or failure to give an instruction... unless the party objects thereto... unless the instruction or the failure to give an instruction is clearly erroneous." This statute already provides that the defendant must meet a very high standard clear error to obtain reversal. The majority notes, but does not apply, the test for clear error: (1) that the court's instruction was legally in error and (2) the error resulted in harm to the defendant. See State v. Trujillo, 296 Kan. 625, Syl. 1-2, 294 P.3d 281 (2013); State v. Berney, 51 Kan. App. 2d 719, , 353 P.3d 1165 (2015). And the statute seems to imply that a party may raise ("assign as error") an instructionerror issue where the instruction given or the failure to give an instruction is "clearly erroneous," without respect to any invitation of error. Second, if we conclude that a defendant has met the clear-error test, then we know that the jury was given an inaccurate instruction and we are firmly convinced that the error probably affected the jury's verdict. In such a case, do we really want to apply the invited-error rule and ignore the error, so that we neither consider nor discuss whether the error prejudiced the defendant? Might there be some cases in which the interests of justice would call on us to consider this issue? I conclude that, to rule on Fleming's appeal, I don't have to decide whether the invited-error rule always prevents review of a jury-instruction error where the defendant asked for the instruction at issue. That's because he simply can't meet the clear-error test. Under the second part of the test that the error resulted in harm to the defendant the appellate court must be firmly convinced that the jury would have reached a different verdict had the proper instruction been given. State v. Charles, 304 Kan. 158, , P.3d, 2016 WL , at *6 (2016). 9

10 The essence of Fleming's argument on appeal is that the jurors may not have concluded that he participated in taking Carrington Dean's wallet and cell phone because other items were taken from the house that night, too. Of course that's so Fleming was separately charged with theft for taking items that belonged to Jamal Davis. And there was evidence that some property of another person, Quintez Secka, was also taken. Proving that some of Secka's property was stolen also supported the aggravated burglary charge, where Fleming was charged with entering a building with the intent to commit a theft. Fleming notes that the jury instruction required that Fleming have taken "property from the presence of Carrington Dean," without specifying that only the wallet and cell phone were alleged to have been taken from Dean. And it's true that evidence was presented that Dean was dragged into Davis' room while the intruders searched for whatever they came looking for (apparently money and marijuana). Thus, there is a theoretical possibility that the jury concluded that Fleming and his associate took Davis' property while in Dean's presence, while not being able to conclude beyond a reasonable doubt that the intruders took Dean's wallet and cell phone. But that seems highly unlikely based on the evidence, the prosecutor's argument, and Fleming's defense at trial. In both opening and closing statements, the only property that the prosecutor mentioned with respect to Dean and the aggravated-robbery charge was the wallet and cell phone. In his opening statement, for example, after explaining how Dean was awakened at gunpoint, dragged out of bed, asked where the money and weed were, and hit on the head, the prosecutor noted that two items were missing when the intruders left: "Mr. Dean can't find his wallet, he can't find his cell phone. They have been taken from him. He had them before these individuals entered the apartment. They're gone." 10

11 In his closing argument, the prosecutor went through each of the three crimes separately. When arguing for conviction on the aggravated-robbery charge, he mentioned only two items the wallet and the cell phone. In response, Fleming did not argue that the State had failed to prove that the wallet and cell phone were stolen. Fleming's attorney essentially admitted that the State had proven the elements of aggravated robbery but argued that the State had not proven that Fleming was one of the intruders: "Let's talk for a moment about the nearly 50 exhibits [the] State of Kansas has put in. What do they show you? Nothing. Absolutely nothing, except that as [the prosecutor] pointed out, if he can show the elements of the crime occurred, well he can; and those pieces of evidence help show that a crime occurred, the agg robbery and the burglary. They don't do anything about whether this man was involved at all." (Emphasis added.) Defense counsel then spent most of his closing argument attacking the evidence that tied Fleming to the crime and the crime scene. And this was Fleming's defense throughout the trial. In opening statement, Fleming's attorney had also conceded that "a bad incident" had taken place but had argued there was no evidence Fleming was involved: "Only months and months later did [others involved] bring Mr. Fleming's name into this. You will find no physical evidence of Mr. Fleming at that house. There isn't any. You will find no physical evidence from that burglary, theft, robbery in Mr. Fleming's possession, because there isn't any. You will find nothing that ties Willie Fleming to this incident, which is a bad incident, absolutely, involving [the others]." (Emphasis added.) In these circumstances, I find it highly unlikely that the jury was confused by any error that may have been made in the aggravated-robbery instruction. I therefore conclude that Fleming has not met his burden under the clear-error standard to show that 11

12 the jury's verdict would have been different had the instruction he now seeks been given. On that basis, I find no reversible error in the court's jury instruction on the aggravatedrobbery charge. I agree with the majority that the district court's refusal to give a sympathy and prejudice instruction was appropriate, and I also agree that we should affirm the district court's judgment. 12