State v. Brown

1

NOT DESIGNATED FOR PUBLICATION

No. 115,817


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AARON ROBERT BROWN,
Appellant.


MEMORANDUM OPINION

Appeal from Cowley District Court; JAMES T. PRINGLE, judge. Opinion filed November 3, 2017.
Affirmed in part, vacated in part, and remanded.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MCANANY and ATCHESON, JJ.

PER CURIAM: Courts have to treat completed jury verdict forms in a criminal case
as saying what they mean and meaning what they say. The Cowley County District Court
didn't do that in this case. According to the verdict form, the jurors convicted Aaron
Robert Brown of attempted involuntary manslaughter, even though they had not been
instructed on such a crime. Nobody noticed the discrepancy when the verdict was
announced and the jurors were polled at the end of the trial. At sentencing, the district
court presumed to correct the verdict to one for attempted voluntary manslaughter and
punished Brown for that crime. But courts cannot take it upon themselves to unilaterally
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fix ostensibly errant verdicts. We find the district court's revisionism to be reversible
error and, therefore, remand for a new trial on attempted voluntary manslaughter.

Brown has also challenged his convictions for criminal possession of a firearm and
aggravated assault. We find no error in those convictions and affirm them.

FACTUAL AND PROCEDURAL BACKGROUND

Given the issues on appeal, we may sketch the background facts briefly. Brown
attended a celebratory party on April 18, 2015, that followed a wedding. Brown came and
left at least a couple of times during the evening and appeared to be drinking heavily.
Many of the partygoers marked the occasion with alcoholic beverages. As the time
slipped past midnight, Brown said he didn't feel well and got up to leave.

Robert Lolar, another guest, then chose to declare rather randomly that he could
"beat up anybody in the house." Brown, for some reason, felt obliged to respond: He
pronounced that although he was too old to fight, he didn't need to because he had a gun.
Unable to let things pass, Lolar pointedly replied, "Well, you got to get to it first."
Brown, who had been walking away, drew a pistol from his waistband and turned, gun in
hand, toward Lolar. Brown, equally pointedly, said, "I'll fight with this." And he warned
Lolar not to take another step toward him. Gene Jordan, another party guest, told Brown,
"[D]on't do it."

According to Brown, Lolar moved toward him. So in what he characterized as an
effort to defend himself from Lolar's attack, Brown fired his pistol repeatedly. Lolar was
shot eight times but survived. Later, Brown asserted that he never intended to kill Lolar
and simply wanted to repel his attack. Lolar countered that he did not advance on Brown
and simply looked at him.

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During the trial, Jordan testified that he was standing in the vicinity of Lolar when
Brown started shooting. Jordan told the jurors that after freezing momentarily, he ran for
cover, fearful of being shot. But Jordan also said he didn't think Brown was shooting at
him and he didn't feel personally threatened.

At the close of the trial evidence, the district court instructed the jurors on
attempted intentional second-degree murder of Lolar with a lesser included offense
instruction for attempted voluntary manslaughter based on imperfect self-defense. The
district court instructed on aggravated assault as to Jordan and on Brown's unlawful
possession of a firearm as a convicted felon. The district court also instructed the jurors
on the law regarding self-defense.

On the verdict form, the jurors found Brown guilty of the unlawful possession and
aggravated assault charges. The verdict form identified the lesser included offense of
attempted second-degree murder as "attempted involuntary manslaughter" and identified
by number the jury instruction on attempted voluntary manslaughter. The jurors indicated
they found Brown guilty of attempted involuntary manslaughter. The verdict was read in
open court as a conviction for attempted involuntary manslaughter. The jurors were then
polled, and each juror averred that the verdicts as read were his or her verdicts. The
district court then accepted the verdicts and discharged the jury. At the time, nobody
raised the discrepancy between the verdict on the shooting of Lolar as published and what
had been included in the instructions.

In a posttrial motion, Brown argued that the jury's verdict constituted an acquittal
of the attempted second-degree murder charge and the lesser crime of attempted
voluntary manslaughter. The district court took up the issue at the sentencing hearing and
determined the jury's verdict as stated on the verdict form amounted to a correctable
mistake. The district court reasoned that "it's clear that it was the jury's intention . . . [to]
return a verdict of guilty . . . to [sic] attempted voluntary manslaughter."
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The district court sentenced Brown to 120 months in prison for attempted
voluntary manslaughter, reflecting a standard guidelines punishment. Brown received a
concurrent prison term of 12 months for the aggravated assault conviction and a
consecutive prison term of 8 months for the firearms possession conviction. The district
court also placed Brown on postrelease supervision for 24 months and ordered he pay a
substantial amount of restitution. Brown has timely appealed.

LEGAL ANALYSIS

District Court Erred in Revising Verdict Form

We first take up Brown's challenge to his conviction for attempted voluntary
manslaughter notwithstanding the jury's verdict, as reflected on the verdict form and in
the poll of the jurors, for attempted involuntary manslaughter. On appeal, Brown says the
district court had no authority to revise the jury verdict during the sentencing hearing,
thereby altering the stated crime of conviction. We agree with Brown that the district
court erred, although we part ways with Brown as to the appropriate remedy. Brown says
he should be acquitted of any charges arising from the shooting of Lolar or, in the
alternative, he should be found guilty of attempted involuntary manslaughter, consistent
with the verdict form. As we explain, neither the district court's revised conviction nor
the jury's verdict can stand, so Brown should receive a new trial on a charge of attempted
voluntary manslaughter.

The issue presents a question of law insofar as the circumstances bearing on the
verdict form, the receipt of the verdict, and the district court's resolution of the conflict
between the stated verdict, on the one hand, and the charge and the instructions, on the
other, are undisputed. We, therefore, owe no particular deference to the way the district
court resolved the problem. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010)
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(appellate court exercises unlimited review over question of law); State v. Bennett, 51
Kan. App. 2d 356, 361, 347 P.3d 229 (when material facts undisputed, issue presents
question of law), rev. denied 303 Kan. 1079 (2015).

At the start of civil and criminal cases, jurors typically take an oath "to try the case
conscientiously and [to] return a verdict according to the law and the evidence." K.S.A.
2016 Supp. 60-247(d). This case was no exception. Having heard the evidence and
considered the law, the jurors then speak through their written verdict as the culmination
of their sworn duty. Especially in criminal cases, the courts have only carefully
circumscribed authority to reject verdicts and even less latitude to revise or correct
verdicts.

A district court, for example, may set aside a guilty verdict if the evidence fails to
support it or errors during the trial deprived the defendant of a fair hearing. See K.S.A.
22-3419 (district court may enter judgment of acquittal following jury verdict if evidence
legally insufficient to convict); K.S.A. 2016 Supp. 22-3501(1) (district court may grant
defendant new trial "if required in the interest of justice"). But a district court has no
authority to set aside a not guilty verdict even if that result seems to contravene the
evidence and the law and appears to be explicable only as an exercise of the jury's power
of nullification. See State v. McClanahan, 212 Kan. 208, 212-13, 510 P.2d 153 (1973)
(outlining doctrine of jury nullification). Here, however, we do not face a problem in
measuring a verdict against the strength of the evidence or the overall fairness of a trial.

The problem is with the verdict form itself and the jury's resulting determination
of the charge related to the shooting of Lolar. How to categorize the defect—as a
technical flaw or as something more—isn't entirely obvious. Whether the problem is
classified as one of formality or one of substance, the district court could not have
purported to fix it after the jury had been discharged. Any corrective steps required the
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involvement and assent of the jury, thus preserving the primacy of juries as decision-
makers on the guilt of the accused in criminal cases.

In K.S.A. 22-3421, the legislature has provided that a district court may correct a
verdict "defective in form only . . . with the assent of the jury, before it is discharged."
Kansas appellate authority is sparse on what constitutes a correctable defect covered by
K.S.A. 22-3421. In State v. Anderson, 33 Kan. App. 2d 607, 613-14, 106 P.3d 89 (2005),
the court applied K.S.A. 22-3421 when the defendant was charged in the alternative with
driving under the influence based on the inability to operate a motor vehicle safely and
for having a blood-alcohol level of .08 or more. The jury was instructed on those
alternatives. The verdict form, however, simply offered the jury the choice of finding the
defendant not guilty or "guilty of driving under the influence of alcohol." 33 Kan. App.
2d at 611. After the jury returned a guilty verdict, the district court and the lawyers
concluded the verdict form was defective for failing to delineate the alternative DUI
theories and to include all of the requisite elements of impaired driving. This court held
that the district court's inquiry of the presiding juror as to the basis for the verdict failed
to correct the defect and the immediate poll of the jurors did not amount to assent to the
"correction" of the defective verdict form. The district court should have informed the
jurors of the problem in a general way, provided them with a proper verdict form, and
had them resume deliberations. This court reversed the defendant's conviction and
ordered a new trial. 33 Kan. App. 2d at 614.

More recently, the Kansas Supreme Court considered what to do when a jury
completed the verdict form indicating it found the defendant guilty of both the charged
crime and a lesser included attempt of the same crime—contrary to the directions on the
form. State v. Hernandez, 294 Kan. 200, 202-07, 273 P.3d 774 (2012). After consulting
with the lawyers and opting to follow the State's suggestion, the district court decided the
problem could be resolved at sentencing and discharged the jury without taking any
additional action. On appeal, the court characterized the defect as one of "inconsistent
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verdicts" in the sense the two guilty findings were legally incompatible and left the jury's
intent and conclusion ambiguous. The court analyzed the issue without applying or even
referring to K.S.A. 22-3421, suggesting the problem tilted more toward a substantive
flaw than a defect in form. The court recognized the conflict could not have been
resolved in fashioning a sentence because there was no reasoned way at that point to sort
out whether the jury meant to say the defendant committed the completed crime or an
attempt—each of which carried a different guidelines sentence. The court pointed out the
discrepancy could have been resolved only by providing the jurors with an explanation of
the problems, new verdict forms, and a directive to resume deliberations. 294 Kan. at
205. The court concluded the defendant's conviction for the completed offense had to be
reversed and the case remanded for a new trial. 294 Kan. at 207.

Here, assuming the conflict between the crime the jury considered and agreed
upon in the verdict form and the crimes submitted in the instructions amounts to a defect
in form covered by K.S.A. 22-3421, the district court should have acted when the jury
returned its verdicts. The district court presumably would have informed the jury of the
problem with the verdict form, provided a revised verdict form with the correct lesser
included offense of attempted voluntary manslaughter, and permitted the jury to resume
deliberations on that charge.

Among the reasons for orally announcing the jury's verdict and then asking or
polling the jurors individually if they agreed to the announced verdict is to catch errors
like the one here. (The process also more broadly promotes a criminal defendant's rights
to a public trial and to a unanimous verdict.) Despite those safeguards, neither the district
court nor the lawyers caught the problem with the verdict before the jury was discharged.
The Kansas Code of Criminal Procedure provides no alternative way of correcting a
defect in the form of a verdict.

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If the result here doesn't fit within K.S.A. 22-3421 as a defect in form, then it is
something more. The problem, of course, doesn't exactly replicate the ones in Anderson
and Hernandez, but they are all of a kind. The verdicts the juries returned didn't
correspond to the legal options outlined in the instructions. And those disconnects tended
to obscure just what the juries may have intended. Just as importantly, whether the
problem be one of form as in Anderson or something more substantive as in Hernandez,
the solution seems clear: The district court should explain the confusion to the jurors;
provide additional instructions and revised verdict forms, as necessary; and allow the
jurors to resume deliberations. Equally clear, however, the district court may not
discharge the jury and later attempt to interpolate what the jury's intended result must
have been.

The district court should not have (and really could not have) presumed to revise
or correct the jury's verdict to change the stated guilty verdict for attempted involuntary
manslaughter to one of guilty of attempted voluntary manslaughter. That approach cannot
be squared with Anderson and Hernandez. And it moves perilously toward the entry of a
directed verdict of guilty—something forbidden in criminal cases as inconsistent with
constitutional due process and the right to jury trial. See Sullivan v. Louisiana, 508 U.S.
275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). In sum, the district court erred in
unilaterally and substantively altering what the jury stated on its verdict form long after
the jury had been discharged.

Another panel of this court came to a different conclusion on similar facts in State
v. Rice, No. 103,223, 2011 WL 4031494, at *15 (Kan. App. 2011) (unpublished opinion),
a decision upon which the district court relied heavily. In that case, Rice was charged
with and the jury was instructed on various sex crimes including aggravated indecent
liberties with a child. As to that charge, however, the verdict form omitted the word
"aggravated" from the description of the crime, so the jury returned a verdict convicting
Rice of indecent liberties with a child. The mistake went unnoticed until after the jury had
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been discharged, as happened here. The district court later found the jury could only have
meant to convict Rice of aggravated indecent liberties with a child and sentenced him
accordingly.

On appeal, the panel effectively held there was nothing amiss with the verdict
form. The panel said K.S.A. 22-3421 didn't apply because the presiding juror signed and
dated the form and it clearly showed the jury found Rice guilty, albeit of a crime other
than the one covered in the instructions. The conflict between the verdict as rendered and
the charges and instructions didn't trouble the panel, since all of the discussion during
trial related to aggravated indecent liberties. So the panel considered the verdict form to
be no different—legally, practically, or (apparently) upon visual inspection—from one
identifying the crime as aggravated indecent liberties. In turn, there was nothing to
correct and revise, and the district court could sentence Rice for aggravated indecent
liberties, even though the verdict form pronounced guilt of a different crime. 2011 WL
4031494, at *12-15.

As our discussion to this point suggests, we disagree. We don't believe a district
court or an appellate court can tamper with a completed verdict form to change the crime
of conviction no matter how obvious the purported error by the jury might be. The
prerogative to revise belongs to the jury and expires when the jury has been discharged.
At that point, the judicial corrective is limited to a new trial.

There may be some "problems" with verdict forms that do not require any fix in
certain circumstances. For example, a transposition of letters in a word creating an
obvious typographical error doesn't demand judicial concern or attention. We suppose a
failure to date the form may not be a defect at all when the verdict is read into the record,
thereby establishing the date it was rendered. We similarly suppose the failure of the
presiding juror to sign the verdict form might be excused where the jurors have been
polled and each of them acknowledges on the record his or her agreement with the
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verdict. And courts customarily treat as surplusage notes a jury may add to a verdict
form, such as a request for leniency in punishment. See Rogers v. United States, 422 U.S.
35, 38, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975). But reconciling a conflict between the
actual crime of conviction in the verdict form and the crimes presented in the instructions
is of an entirely different scope. Any judicial reconciliation after the jury has been
discharged amounts to a guess. And however educated it might be, it remains nothing
more than a guess. That's not acceptable given the fundamental importance the criminal
justice process attaches to jury trials and their results. See Duncan v. Louisiana, 391 U.S.
145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) ("[W]e believe that trial by jury in
criminal cases is fundamental to the American scheme of justice[.]"); State v. Beaman,
295 Kan. 853, 858, 286 P.3d 876 (2012) (characterizing criminal defendant's right to jury
trial as "fundamental").

Consistent with Anderson and Hernandez, the remedy here requires reversal of
Brown's conviction for attempted involuntary manslaughter and a remand for a new trial
on the charge of attempted voluntary manslaughter. In its verdict, the jury unequivocally
acquitted Brown of attempted second-degree murder by considering and rendering a
verdict on a lesser included offense, even though that verdict may be unclear as to the
resulting crime of conviction. That is, given the instructions, the jury necessarily found a
reasonable doubt as to Brown's guilt for attempted second-degree murder by reaching the
lesser offense, so that much of its decision is clear and must be given legal effect. See
K.S.A. 2016 Supp. 21-5110(e); In re Berkowitz, 3 Kan. App. 2d 726, Syl. ¶ 4, 602 P.2d
99 (1979).

We disagree with Brown's argument that he cannot be retried or, alternatively,
should be sentenced for involuntary manslaughter. Although the verdict form muddled
exactly what the jury intended to convict Brown of, the result plainly showed there were
12 votes to acquit him of attempted second-degree murder and 12 votes to convict him of
something else. The jury did not intend to find him not guilty or it would have done so.
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Nothing in the instructions or the verdict form inhibited that result. Directing a judgment
of acquittal for Brown on appeal would afford him a gratuitous remedy under the
circumstances.

There are at least two reasons the verdict as rendered should not be enforced. First,
the jury was never instructed on the law pertaining to involuntary manslaughter and could
not have rigorously considered or applied that law, rendering the verdict, at best,
serendipitous at least from Brown's perspective. Appellate review generally ought to
avoid bowing to serendipity as a principal reason for upholding an outcome that should
be grounded in rational decision-making. Second, as we discuss next, the crime of
attempted involuntary manslaughter based on a lawful act of self-defense done in an
unlawful manner amounts to a legal impossibility. There is even less reason for
upholding a conviction for a crime that doesn't exist.

District Court Correctly Denied Instruction on Attempted Involuntary Manslaughter

For the first time on appeal, Brown argues the district court should have given a
jury instruction on attempted involuntary manslaughter as a lesser included offense to the
charge of attempted second-degree murder of Lolar. Although we have reversed Brown's
conviction, we take up this issue because it presumably would come up at any retrial. See
State v. Hurd, 298 Kan. 555, 571, 316 P.3d 696 (2013). The argument here spins off
Brown's claim of self-defense. He contends that the jury reasonably could have found he
undertook a lawful act—self-defense—but performed the act in an unlawful manner by
using excessive force, thereby making the shooting of Lolar an attempted involuntary
manslaughter. See K.S.A. 2016 Supp. 21-5405(a)(4) ("Involuntary manslaughter is the
killing of a human being committed . . . during the commission of a lawful act in an
unlawful manner.").

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As we have indicated, we find no error in the omission of such an instruction
because the described crime does not exist in the way Brown has framed his argument. A
district court should not instruct on nonexistent crimes as lesser included offenses. Cf.
State v. Franco, 49 Kan. App. 2d 924, 932, 319 P.3d 551 (2014) (defendant not entitled
to instruction on lesser included crime that is unconstitutional and, therefore, cannot
result in a lawful conviction), rev. denied 301 Kan. 1049 (2015).

The Kansas Supreme Court has outlined a sequential process for analyzing
purported errors resulting from the failure to give jury instructions. The reviewing court
must examine: (1) reviewability considering preservation of the issue at trial and
jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the
evidence for the instruction; and (4) harmlessness of any actual error. State v. Beltz, 305
Kan. 773, 779-80, 388 P.3d 93 (2017). Even though Brown did not request the instruction
in the district court, we have jurisdiction to consider the issue. Turning to the next step,
we apply an unrestricted standard of review to legal appropriateness. 305 Kan. at 779. As
we explain, Brown's request founders on that requirement, so we need not examine
factual appropriateness. A defendant challenging the failure to give an instruction for the
first time on appeal has to demonstrate clear error to obtain relief. Franco, 49 Kan. App.
2d at 928. But because the district court could not have erred in failing to give a legally
inappropriate instruction, the fourth step is also superfluous to our disposition of the
point.

As we have indicated, Brown premises his argument on that form of involuntary
manslaughter that criminalizes "a lawful act [done] in an unlawful manner," the
commission of which results in "the killing of a human being." K.S.A. 2016 Supp. 21-
5405(a)(4). The completed crime of involuntary manslaughter does not require an intent
to kill, unlike other degrees of criminal homicide; rather the defendant's actions must
result in the death of another person. Because Lolar survived, the purported crime
becomes an attempt.
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Brown submits his lawful act was defending himself in response to Lolar's
aggressive conduct at the party. And he says a jury could conclude that his repeated firing
of the pistol amounted to excessive force, constituting "an unlawful manner" of
defending himself. Brown's analysis fails to account for key legal principles governing
attempts and self-defense. First, an attempt requires the defendant have the specific intent
to commit the completed crime. K.S.A. 2016 Supp. 21-5301(a) (attempt requires "overt
act" to carry out a crime by "person who intends to commit such crime" but fails in doing
so) (emphasis added); State v. Louis, 305 Kan. 453, 460-61, 384 P.3d 1 (2016). Here, that
would not be an intent to kill but an intent to act in self-defense in an unlawful manner by
using too much force. Self-defense, however, requires an individual "reasonably believe[]
that such use of force is necessary" to repel an imminent threat of bodily harm. K.S.A.
2016 Supp. 21-5222(a). The required statutory belief has subjective and objective
components, meaning, first, the person must honestly believe he or she is in immediate
danger necessitating the use of that degree of force against another person (subjective
belief) and, second, an objectively reasonable person would also view the circumstances
that way (objective belief). See State v. Salary, 301 Kan. 586, 593-94, 343 P.3d 1165
(2015); State v. Andrew, 301 Kan. 36, 45, 340 P.3d 476 (2014).

The confluence of those principles dooms Brown's argument about attempted
involuntary manslaughter based on self-defense. To commit that crime, a defendant
would have to intend to defend himself or herself in an unlawful way—by using
excessive or unreasonable force under the circumstances. But if the defendant acts with
that particular intent or state of mind, he or she could not honestly believe the degree of
force to be reasonable and, thus, lawful. Such a state of mind necessarily must be
incompatible with the lawful act of self-defense. By definition, a person using force he or
she believes to be unwarranted cannot be acting in self-defense and, therefore, cannot be
engaging in a lawful act within the scope of the involuntary manslaughter statute,
whether applied to a completed crime or an attempt.
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For that reason, Brown's argument for an instruction on attempted involuntary
manslaughter in this case fails as a matter of law. The district court properly would have
refused a request for such an instruction and, therefore, committed no error in failing to
give one.

Sufficient Evidence Supported Brown's Conviction for Aggravated Assault

Brown contends his conviction for the aggravated assault of Jordan must be
reversed because the State produced insufficient evidence that he knowingly caused
Jordan to fear for his safety and that Jordan harbored such a fear. We reject the argument
and find sufficient evidence to uphold the conviction.

In reviewing a sufficiency challenge, we construe the evidence in a light most
favorable to the party prevailing below, here the State, and in support of the jury's
verdict. An appellate court will neither reweigh the evidence generally nor make
credibility determinations specifically. State v. Williams, 299 Kan. 509, 525, 324 P.3d
1078 (2014); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). Our inquiry
simply asks whether rational jurors could have found the defendant guilty beyond a
reasonable doubt. State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).

On this charge, the State had to prove Brown "knowingly" placed Jordan "in
reasonable apprehension of immediate bodily harm" and used a deadly weapon to do so.
K.S.A. 2016 Supp. 21-5412(a) (defining assault); (b)(1) (aggravated assault requires
deadly weapon). Relevant here, "knowingly" is a statutorily defined degree of mental
culpability requiring a criminal defendant to be aware his or her "conduct is reasonably
certain to cause" a proscribed result. K.S.A. 2016 Supp. 21-5202(i). For aggravated
assault, the proscribed result is the victim's apprehension of bodily harm.

15

The evidence showed that Brown repeatedly fired his pistol at Lolar while the two
faced each other in the dining room of a home where, despite the late hour, many guests
remained at the wedding celebration. Jordan testified he was sitting at the dining room
table when Brown began shooting. He said he ran out of the room as Brown continued to
fire the pistol because he feared he might get shot. Jordan testified that he didn't believe
Brown intended to shoot him, but he "was getting out of the way." Brown testified in his
own defense and asserted he shot at Lolar to defend himself. Nothing in Brown's
testimony suggested he intended to shoot anyone else.

Taken favorably to the State, the evidence supports the aggravated assault
conviction. Brown fired multiple shots at Lolar in close quarters with Jordan and other
people in the immediate vicinity. In that situation, Brown could have and should have
expected Jordan and the others to be reasonably apprehensive or anxious that they might
be hit by a poorly aimed shot. The crime did not require evidence that Brown meant to
shoot anyone other than Lolar—only that he could be fairly certain his decision to
repeatedly fire the handgun would cause Jordan to be worried for his own safety. The
circumstances themselves fairly support that conclusion about Brown's state of mind.
Direct evidence of a defendant's intent or state of mind is seldom available, and
competent circumstantial evidence typically will be sufficient. State v. Griffin, 279 Kan.
634, 658, 112 P.3d 862 (2005); cf. State v. Jefferson, 297 Kan. 1151, 1167, 310 P.3d 331
(2013) (elements of even serious crimes can be proved through circumstantial evidence,
and jurors may rely on logical inferences drawn from those circumstances).

The evidence, likewise, did not have to show Jordan thought Brown intended to
injure him rather than Lolar. Jordan simply had to be reasonably apprehensive that he
could get hurt. Both his conduct at the time in leaving the room as quickly as possible and
his explanation to the jurors of his reaction to the situation supported that element of the
crime. Sufficient evidence supported the aggravated assault of Jordan.

16

Brown Invited Any Error in Instruction on Criminal Possession of Firearm

Brown contends the jury instruction outlining the elements of criminal possession
of a firearm by a convicted felon omitted part of one of those elements, thereby depriving
him of a fair trial and a legally sufficient guilty verdict on that charge. We find the
purported error was invited, since the instruction in that respect conformed to the jury
instruction Brown requested the district court use to inform the jurors about what the
State had to prove to convict him. As a general rule, we will not afford relief to a party
for an invited error. State v. Schreiner, 46 Kan. App. 2d 778, 788, 264 P.3d 1033 (2011).
In Schreiner, the court described the rule and its operation this way:

"Parties cannot complain to an appellate court about their own conduct—or that of their
lawyers—or about rulings or decisions they have asked a trial judge to make. If parties
get what they ask for from district court judges, we will not reverse judgments against
them even though they may think better of their requests on appeal." 46 Kan. App. 2d at
788.

That's what happened here, and we see no good reason to disregard the invited-error rule.

Basically, K.S.A. 2016 Supp. 21-6304 criminalizes the possession of firearms by
persons convicted of felonies under certain circumstances. The circumstance applicable
to Brown was his possession of a firearm when he committed the felony resulting in his
previous conviction. See K.S.A. 2016 Supp. 21-6304(a)(1). The standard jury instruction
for unlawful possession includes this element: "The defendant was found to be in
possession of a firearm at the time of the prior crime." PIK Crim. 4th 63.040 (2014
Supp.).

Brown's trial lawyer, however, asked the district court to give an instruction that
stated the element as "[t]he defendant had been convicted of a felony," and included an
explanation that the jurors should "consider the convicted felon status of the defendant as
17

proven by agreement of the parties in the form of a written stipulation by the parties."
The district court incorporated that language into the instruction given to the jurors and
omitted the standard language about the defendant having a firearm during the predicate
crime. The district court added language informing the jurors the stipulation pertained
only to that element of the instruction and should not be considered for anything else.
Brown did not object to the additional language.

The tailored instruction on criminal possession kept the jurors from learning both
the precise felony Brown had been convicted of previously and that he carried a firearm
when he committed the earlier felony. By omitting those facts, the restyled instruction
presumably inured to Brown's benefit.

Regardless of the perceived advantage of the stipulation and the resulting jury
instruction, that's what Brown asked for from the district court. And that's what he got.
Consistent with the invited-error rule, he cannot on appeal now complain the district
court blundered in giving the instruction. His point fails for that reason alone, so we
dispense with determining whether the instruction was in fact erroneous.

Cumulative Error

As his final point, Brown argues that cumulative error deprived him of a fair trial,
necessitating reversal of his convictions. Appellate courts will weigh the collective
impact of trial errors and may grant relief if the overall result of the imperfections
deprives the defendant of a fair hearing even when the errors considered individually
could be treated as harmless. State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485
(2014). An appellate court looks at the entire trial record to assess the aggregate effect of
multiple trial errors. 301 Kan. at 168.

18

We have identified only a single mistake for purposes of considering cumulative
error—the handling of the verdict for the shooting of Lolar. When only one error has
been found, there can be no distinct or greater cumulative error. State v. Foster, 290 Kan.
696, 726, 233 P.3d 265 (2010).

Although we have declined to grant relief to Brown on the elements instruction for
criminal possession of a firearm on the basis of invited error, we have simply assumed
error on that point in arriving at our conclusion. But even with that assumption, we would
not consider the instruction in assessing cumulative error precisely because any misstep
by the district court had been invited. See State v. Knight, No. 105,092, 2012 WL
2325849, at *7 (Kan. App. 2012) (unpublished opinion) (appellate claim of cumulative
error does not permit defendant "to resurrect lost errors—those waived, invited, or simply
never raised in the district court").

Conclusion

Having reviewed Brown's claims of error, we reverse his conviction for attempted
voluntary manslaughter, vacate that sentence, and remand for a new trial on that charge.
In all other respects, we affirm the district court.