NOT DESIGNATED FOR PUBLICATION. No. 116,505 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, CHRISTOPHER BOOTHBY, Appellant.

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1 NOT DESIGNATED FOR PUBLICATION No. 116,505 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. CHRISTOPHER BOOTHBY, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Stevens District Court; CLINTON B. PETERSON, judge. Opinion filed February 9, Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Paul F. Kitzke, county attorney, and Derek Schmidt, attorney general, for appellee. Before LEBEN, P.J., HILL, J., and WALKER, S.J. PER CURIAM: Christopher Boothby appeals his convictions of aggravated assault and criminal threat following a jury trial, arguing that he should receive a new trial because the district court judge made improper comments in front of some of the jury members at the beginning of jury selection and then improperly instructed the jury during the trial. Upon review, we find that Boothby has failed to show that the district court committed reversible error and thus we affirm his convictions. 1

2 FACTS On October 16, 2014, Gena Burnett was at her home in Hugoton with her three children when Boothby came into her house through the unlocked front door. Gena's husband, Jason Burnett, is Boothby's cousin. Gena was in her bedroom when she heard the door open, so she went through the kitchen to see who was there. Boothby started yelling for Jason. Gena told Boothby that Jason was not there, and Boothby asked where he was. Gena told him that he was at work. At that point, Boothby turned around and walked out. Boothby was in the house for only about a minute. After Boothby left, Gena called Jason and told him that Boothby was probably on his way to Jason's business and to get out of there. Jason's business was a mile east of Hugoton in Stevens County. He was already in his truck with an employee heading back to town when Gena called and told him to leave. Jason saw Boothby drive by in his truck, but Jason continued driving to town. He was hoping Boothby would leave when he saw that Jason was not there. After waiting at home approximately minutes, Jason returned to his business from another direction. Boothby was still there, so Jason pulled his vehicle next to Boothby's to where their driver's sides were next to each other. Jason rolled his window down and asked Boothby what was up. Instead of answering, Boothby pulled his vehicle forward a bit and stopped. Jason got out of his vehicle and walked to Boothby's driver's side door. Boothby had a silver revolver in his lap. Jason asked Boothby what he was doing with a gun, and Boothby responded that Jason knew what this was all about. Jason reached in to grab the gun from Boothby, but Boothby did not let him take it. Boothby then took the gun in his hand, at which time it was pointed toward Jason through the door. Jason tried to grab the gun again, and Boothby pulled it up, pointing it through the window. Boothby then said, "'I'll be back when you are alone,'" right before he drove away. 2

3 Two weeks later the State filed an initial complaint charging Boothby with aggravated burglary and aggravated assault. However, the State subsequently filed an information against Boothby with the original two charges of aggravated burglary and aggravated assault plus an additional charge of criminal threat. On January 4, 2016, the district court held a jury trial. After the attorneys made their opening statements, Gena and Jason testified about Boothby's conduct on October 16, Both of them testified that Boothby's actions on that day scared them. Additionally, an officer from the Stevens County Sheriff's Department testified about his investigation of the allegations made by Gena and Jason. After the State presented its evidence and rested, the district court dismissed the charge of aggravated burglary, finding that the State failed to make a prima facie case on that charge. The court, however, informed the parties that the charges of aggravated assault and criminal threat would be submitted to the jury. Boothby presented no evidence in his defense. The jury returned a verdict finding Boothby guilty of aggravated assault and criminal threat. On June 3, 2016, the district court sentenced Boothby to 27 months in prison for his aggravated assault conviction and a concurrent 6-month prison sentence for his criminal threat conviction. Boothby filed a timely notice of appeal of his convictions. ANALYSIS The district court's comments to the jury pool during jury selection Boothby first argues that the district court made comments to the jury about another of his cases. He contends those comments were unduly prejudicial and that as a result his convictions should be reversed and his case remanded for a new trial. 3

4 In considering a claim of judicial misconduct, appellate courts have unlimited review to look at the surrounding facts and circumstances to determine whether the defendant's substantial rights were prejudiced by the comments. The party alleging judicial misconduct bears the burden of showing prejudice. State v. Cheever, 306 Kan. 760, , 402 P.3d 1126 (2017), cert. denied December 11, 2017; State v. Hudgins, 301 Kan. 629, , 346 P.3d 1062 (2015). Boothby admits that he did not object to the comments the judge made to the potential jurors regarding his other case, but he argues that this court may review the allegation of judicial misconduct despite the lack of a contemporaneous objection because he is claiming that the judge's conduct violated his right to a fair trial. Boothby is correct that our caselaw authorizes us to review the comments made by the district court to the potential jurors in this case to determine if Boothby's substantial rights have been prejudiced. See State v. Tyler, 286 Kan. 1087, 1090, 191 P.3d 306 (2008) (Kansas Supreme Court "can review an allegation of judicial misconduct on appeal despite the absence of a contemporaneous objection where the defendant claims his or her right to a fair trial was violated."). At the beginning of jury selection, after the court clerk had called up the first panel of prospective jurors, the following exchange occurred: "[THE COURT:] Ladies and gentlemen, this is the part of the trial where we are selecting a jury from all the prospective jurors in the courthouse. And what's going to happen is I have a few questions to ask you generally about the case and then the lawyers will each have an opportunity to question you individually as well. "So, with that the this is a criminal case. The defendant, his name is Chris Boothby and he is charged with three crimes, those are aggravated battery, aggravated assault, and criminal threat. The alleged victim's name is Eugenia Burnett. "[DEFENSE COUNSEL]: Your Honor, we have a correction there. 4

5 "[PROSECUTOR]: The first charge is aggravated burglary. I think you said aggravated battery. "THE COURT: Ag burglary. I think I may have his former case. "[PROSECUTOR]: 76 is his case. "THE COURT: All right. I need to find the correct... I believe I saw a Complaint filed in September "[PROSECUTOR]: That's from July. That's the information that we have. "THE COURT: I've got that.... All right. Ladies and gentlemen, let me start over. The defendant is charged with aggravated burglary, aggravated assault, and criminal threat. The acts that allegedly occurred that led to these charges occurred on October 16 of 2014 here in Stevens County, Kansas and the alleged victims are Eugenia Burnett and Jason Burnett." (Emphasis added.) Boothby complains about the italicized comment, claiming that it was improper for the district court judge to comment on his former case. He argues this issue along the lines of a prosecutorial misconduct analysis, first arguing that the district court's comment was improper and then arguing how it was prejudicial. See State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016) (to find prosecutorial error, courts must determine whether acts fall outside wide latitude afforded prosecutors, and if error is found, appellate court must next determine whether error prejudiced defendant's due process rights to a fair trial). Boothby contends that the statement was improper because information involving other prior crimes is severely restricted under K.S.A due to the extremely prejudicial nature of that type of evidence, citing State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). And although Boothby acknowledges that he could not find a case in which a court found it was improper for a district court to discuss a defendant's other crimes, he argues that there are many cases in which a court found it was improper for the State to have introduced evidence of other crimes, citing only State v. Prine, 287 Kan. 713, , 200 P.3d 1 (2009). Boothby contends that the district court's mention of his former case prejudiced him. According to Boothby, six members of the jury that ultimately found him guilty 5

6 were in the courtroom at the beginning when the district judge made the comment. He maintains that this comment prejudiced him because the facts of the case were not disputed, and the jury's decision depended on how it interpreted Boothby's actions. Boothby claims that in order to find him guilty of aggravated assault, the jury had to decide if Boothby pointed the gun at Jason or if he was just holding it when Jason grabbed for it. Boothby claims that this required the jury to determine how violent a person he was, so knowing that he was accused of similar crimes in another case would lead a reasonable person to believe he "had a violent character" and likely pointed the gun at Jason. Regarding his charge of criminal threat, he argues that the statement that he had another charge swayed the jury into thinking he was the type of person who said "'I'll be back when you're alone'" to mean he was coming back to harm Jason as opposed to coming back to talk to his cousin without his employee present. Thus, Boothby argues that the comment unduly prejudiced half the jury panel and denied him a fair trial, requiring this court to reverse his convictions and remand for a new trial. In response, the State argues that the district court's misstatement did not substantially prejudice Boothby. The State points out that the statement was brief and was made at the beginning of the first panel of potential jurors. The court corrected its misstatement and informed the panel of potential jurors that it would be starting over. The State suggests that this brief misstatement at the beginning of the case made only in front of a few of the jury members did not prejudice Boothby because throughout the rest of the trial, the jurors were properly instructed that they should consider and weigh only information admitted into evidence and disregard any testimony or exhibit not admitted. The State contends that the misstatement, if heard and understood by the jury members, was attenuated and resolved by the later statements instructing the jurors. 6

7 In support of its argument, the State cites Cheever, 306 Kan. at 793, in which the Kansas Supreme Court considered whether the district court's comments explaining the role of the court reporter in making a complete record for the purpose of appellate review were improper because the comments informed the jury of the defendant's right to appeal. Applying the judicial misconduct standard, the court found: "While we are mindful that this is a capital case in which the jury imposed a death penalty, we find no indication whatsoever that Cheever's rights were prejudiced by the trial judge's factual statements regarding the court reporter's duties. The statements were among the earliest remarks the eventual jurors heard, and any effect they might have had was surely attenuated by the voir dire process, the trial, and the instructions informing jurors of their responsibilities in both the guilt phase and the penalty phase. Trial judges should not mention appellate review to juries, but the brief and strictly factual mention to the panels in this case, before voir dire had begun and jurors were actually selected, is not grounds for reversal." 306 Kan. at 794. After reviewing the surrounding facts and circumstances of this trial, and viewing those events through an analytical lens like the one utilized by our Supreme Court in Cheever, we cannot find that Boothby has met his burden of proof. We are not convinced that Boothby's substantial rights were prejudiced by the district court's initial mistake in stating what Boothby was charged with in the current trial and then mentioning a former case. This statement was one of the earliest remarks the eventual jurors heard, and only six of them were in the courtroom when the district court judge said it. Any effect the comment might have had was clearly attenuated by the jury selection process, the trial, and the instructions informing jurors of their responsibility to consider only the evidence produced at trial in arriving at their decision. Although we believe the district court should not have mentioned a former case, this brief mention in passing to one panel before jury selection had begun and when the 7

8 district court noted that it was starting over, when considered in light of all the events of the trial, is not in our opinion grounds for reversal. The district court's instruction that the jury must follow the law Boothby's second argument is that the district court erred in instructing the jury that it must follow the law. Specifically, Boothby challenges the following instruction given to the jury: "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions." Boothby argues that the district court erred when it instructed the jury that its verdict must be founded on the evidence and the law because the instruction negated the jury's right to nullify the verdict. Boothby did not object to this instruction at trial, and when a party fails to object to an instruction given at trial, the party is prohibited from later arguing that the district court erred in giving the instruction unless the instruction was "clearly erroneous." K.S.A Supp (3). Appellate courts use a two-step process to decide whether a challenged instruction was clearly erroneous. First, the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate. This court has unlimited review when determining the legality of this instruction. State v. Smyser, 297 Kan. 199, , 299 P.3d 309 (2013). Second, if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. When performing this analysis, this court has unlimited review of the entire record. The party claiming error in the instructions bears the burden of proving the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). 8

9 Jury nullification occurs when a jury knowingly renders a verdict contrary to the evidence or the law. It is defined as: "'A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.' Black's Law Dictionary 875 (8th ed. 2004)." Silvers v. State, 38 Kan. App. 2d 886, 888, 173 P.3d 1167 (2008). The Kansas Supreme Court has expressly disapproved of jury nullification instructions. In State v. McClanahan, 212 Kan. 208, 217, 510 P.2d 153 (1973), the court stated: "Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon." Moreover, in State v. Naputi, 293 Kan. 55, 65-66, 260 P.3d 86 (2011), the Kansas Supreme Court affirmed the district court's decision to decline to modify the jury instruction on burden of proof to reflect the jury's power of nullification. The court stated that "[j]uries possess the power to decide a case in a manner which is contrary to the applicable facts and law, i.e., the power of jury nullification. However, a defendant is not entitled to have the jury instructed on the power of nullification." 293 Kan. 55, Syl. 4. The Naputi court ruled: "It is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no matter how draconian it might be." 293 Kan. at 66. 9

10 Even though jurors can decide to nullify a verdict, jurors are supposed to accept the rules of law given to it in the instructions and apply those rules in determining what verdict to return. That, coupled with the fact that it is erroneous to instruct the jurors that they can nullify, requires us to conclude that the instructions given in this case were correct statements of the law. The instruction given, which drew directly from PIK Crim. 4th , was legally correct. Because there was no error in the jury instructions, we need not reach the second element of the clear error analysis. See State v. Trotter, No. 114,743, 2017 WL , at *3-4 (Kan. App. 2017) (rejecting the same argument raised in this appeal), petition for rev. filed September 25, 2017; State v. Toothman, No. 114,944, 2017 WL , at *11 (Kan. App. 2017) (unpublished opinion) (same), petition for rev. filed July 10, 2017; State v. Moss, No. 113,034, 2016 WL , at *16 (Kan. App. 2016) (unpublished opinion) (same), rev. denied 306 Kan (2017). But even if the challenged instruction was legally flawed, Boothby has not demonstrated clear error. Boothby argues that it was likely the jury would have nullified the law in order to reach a different verdict, because even if it found that Boothby knew that pointing the gun at Jason would frighten him, it may have been reluctant to convict due to Jason's action in reaching for the gun. Nevertheless, Boothby has not convinced us that a jury would have reached a different result if a different instruction had been given. Either way, the jury would have had to disregard the instructions in order to render a nullifying verdict. Thus, we are not persuaded that the jury instructions convinced an otherwise nullifying jury to find Boothby guilty. Boothby has not proven clear error. Affirmed. 10