State v. Nongnavanh

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NOT DESIGNATED FOR PUBLICATION

No. 113,543

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

VANKHAM VONGNAVANH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed December 23, 2016.
Affirmed.

Candice Alcaraz, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office,
for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GARDNER, P.J., BUSER and STANDRIDGE, JJ.

BUSER, J.: A jury convicted Vankham Vongnavanh of criminal possession of a
weapon by a convicted felon. In this direct appeal, Vongnavanh claims the district court
committed reversible error when, because Vongnavanh had stipulated to the truth of two
elements of the crime, the court "improperly instructed the jury that it did not have to find
every element of the charged offense beyond a reasonable doubt." Finding no reversible
error, we affirm the conviction.

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FACTUAL AND PROCEDURAL BACKGROUND

At trial, the jury heard testimony that neighbors of Vongnavanh called police after
they heard gunshots coming from inside his house. A witness testified that Vongnavanh
had a gun in his hand and that he fired two shots down an empty hallway. Police
recovered a handgun at the scene. As a result of this incident, Vongnavanh was charged
with criminal possession of a weapon by a convicted felon, in violation of K.S.A. 2015
Supp. 21-6304(a)(1).

Immediately before voir dire, and outside the presence of the jury array, the parties
formally submitted to the trial court a written stipulation which was marked as State's
Exhibit 1. The following colloquy then took place between the trial court, Vongnavanh,
Trinity Muth (prosecutor), and Latina Wharton (defense counsel):

"THE COURT: [T]he first thing I just want to get on the record is a stipulation
and it's proposed to be introduced as State's Exhibit 1. It says, 'Defendant admits that he,
Vankham Vongnavanh, was convicted of a person felony in Sedgwick County, Kansas
and defendant was found to be in possession of a firearm at the time of the prior crime.'
Mr. Muth, acceptable?"
"MR. MUTH: Yes, Your Honor
"THE COURT: And, Ms. Wharton, acceptable?
"MS. WHARTON: Yes.
"MR. MUTH: The record should reflect that both Ms. Wharton and I have
signed it and the defendant has signed it as well."

During the trial, both the State and defense counsel submitted proposed jury
instructions to the district court. The day after receiving those submissions, the trial court
presented the parties with the court's proposed jury instructions noting that they were
"almost identical to what was submitted, and your instructions were mirror images of one
another." Vongnavanh, however, did not file his proposed instructions with the district
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court, and they are not included in the record on appeal. See Supreme Court Rules 3.01,
3.02 (2015 Kan. Ct. R. Annot. 20).

The record memorializes the colloqouy between the trial court, prosecutor, and
defense counsel during the two jury instructions conferences. The instruction at issue—
jury instruction No. 3—was unchanged throughout this process. The district court
charged the jury as follows:

"Instruction No. 3. 'The defendant is charged with criminal possession of a
firearm by a convicted felon. The defendant pleads not guilty. To establish this charge
each of the following claims must be proved:
"1. The defendant possessed a firearm.
"2. The defendant has been convicted of a person felony.
"3. The defendant was found to be in possession of a firearm at the time of the
prior crime.
"4. This act occurred on or about the 30th day of September, 2014, in Sedgwick
County, Kansas.
"'Possession' means having joint or exclusive control over an item with
knowledge of or intent to have such control or knowingly keeping some item in a place
where the person has some measure of access and right of control.
"Claim Number 2 and claim Number 3 above have been agreed to by the parties
and are to be considered by you as true. However, the State must still prove claim
Number 1 and claim Number 4 beyond a reasonable doubt.'" (Emphasis added.)

In the first instructions conference held during the trial, defense counsel objected
to the use of the word "defendant" instead of her client's name in jury instruction No. 3,
but that objection was overruled. When the trial court asked if there were objections to
the final paragraph of jury instruction No. 3, Vongnavanh's counsel stated: "I'd just note
that the PIK 51.020 is just a little bit different, but I have no objection to the way it's
worded . . . here."
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In the second instructions conference held immediately before the jury instructions
were read to the jury, Vongnavanh's counsel again did not object to the third part of jury
instruction No. 3, but only to the use of the word "defendant," instead of Vongnavanh's
name. The district court noted the objection, confirmed it was the only objection, and
overruled it.

Immediately before reading the instructions to the jury, the trial judge stated:

"The first thing I'm going to read to you is the stipulation. You'll get that—you
don't see it in your materials there, but you'll get it and it's going to be brought into your
deliberation room. The stipulation is that the defendant admits that he, Vankham
Vongnavanh, was convicted of a person felony in Sedgwick County, Kansas, and the
defendant was found to be in possession of a firearm at the time of the prior crime."

Following deliberations, the jury convicted Vongnavanh of criminal possession of
a weapon by a convicted felon. He was sentenced to 19 months' imprisonment.

DISCUSSION

On appeal, Vongnavanh contends the district court erred in instructing the jury to
consider the agreed-upon stipulation to be true, without requiring the jury to make a
finding that claim No. 2 and claim No. 3 were proven beyond a reasonable doubt. The
State counters that Vongnavanh's contention was not preserved for appeal, the instruction
was legally and factually proper, and, alternatively, if it was error, it was either invited
error or harmless.

Vongnavanh candidly concedes that defense counsel did not object to jury
instruction No. 3 in the district court on the basis that he now raises for the first time on
appeal. Nevertheless, Vongnavanh argues that despite this failure to object, our court may
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review "instructional issues for the first time on appeal (albeit possibly with a different
reversibility test)."

Vongnavanh's argument has merit. His failure to object to jury instruction No. 3 in
the district court does not prevent our court from conducting an appellate review. But his
failure impacts the nature of our review: A party may not claim error because the trial
court gave or failed to give a jury instruction unless (1) the party objects before the jury
retires, stating distinctly the matter to which the party objects and the grounds for the
objection; or (2) the instruction or the failure to give the instruction is clearly erroneous.
K.S.A. 22-3414(3); State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Because
Vongnavanh did not object to the giving of jury instruction No. 3 during trial, the
question presented is whether the giving of jury instruction No. 3 was clearly erroneous.

Appellate courts utilize a two-step process in determining whether a challenged
instruction was clearly erroneous: (1) The court must determine whether there was any
error at all by considering whether the subject instruction was legally and factually
appropriate, employing an unlimited review of the entire record; (2) if the court finds
error, it must assess "'whether it is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred.'" 297 Kan. at 204. Reversibility is
subject to unlimited review and is based on the entire record; the party claiming error in
the instructions has the burden to prove the degree of prejudice necessary for reversal.
State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).

Preliminarily, we must address the State's assertion that we should not review the
question presented because Vongnavanh invited the claimed instructional error.
Generally, a defendant may not invite error and then complain of the error on appeal.
State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). In other words, "'[w]here a
party procures a court to proceed in a particular way and invites a particular ruling, [the
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party] is precluded from assailing such proceeding and ruling on appellate review.'" State
v. Schreiner, 46 Kan. App. 2d 778, 788, 264 P.3d 1033 (2011).

The State notes that during the first instructions conference the district court
acknowledged receiving both parties' proposed instructions and remarked that the
instructions "were mirror images of one another." According to the State: "Where
defendant's instructions mirrored [the State's proposed instruction relating to the
stipulation], and that language is compared to the instruction the district court gave, and
which defendant now complains of, it is clear that defendant invited any error in the
instant case." Vongnavanh counters that because his proposed jury instruction regarding
the elements of the crime was not filed with the district court, and is not a part of the
record on appeal, there is no basis for the State to argue that the defendant invited error
with regard to jury instruction No. 3. We disagree with Vongnavanh's argument.

We are persuaded the record is sufficient to show that Vongnavanh invited any
error in the submission of jury instruction No. 3 to the jury. First, the trial court noted that
the sets of proposed instructions submitted by the State and Vongnavanh "were mirror
images of one another." Moreover, after comparing the two sets of instructions with the
trial court's proposed instructions, the trial court observed that its instructions were
"almost identical to what was submitted."

Second, the absence of Vongnavanh's proposed instruction which ultimately was
incorporated into jury instruction No. 3 does not hinder our analysis of invited error.
During the two instructions conferences, Vongnavanh did not object—as he now does on
appeal—that jury instruction No. 3 "improperly instructed the jury that it did not have to
find every element of the charged offense beyond a reasonable doubt." On the contrary,
during the first instructions conference, Vongnavanh specifically approved the language
found in the last paragraph of jury instruction No. 3 by informing the trial court, "I have
no objection to the way it's worded . . . here." (Emphasis added.)
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State v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012), provides valuable precedent
in resolving the question of whether Vongnavanh's affirmation of the wording of the last
paragraph of jury instruction No. 13 constitutes invited error. During the instructions
conference in Peppers, the trial court proposed an "Allen-type instruction" which our
Supreme Court has found to be erroneous "because the language is misleading,
inaccurate, and confusing." 294 Kan. at 393. The trial court advised the State and Peppers
that it would not give the instruction if either side objected. Peppers' counsel responded
that counsel had no objection to the giving of the erroneous instruction which was
ultimately submitted to the jury. On appeal, however, Peppers argued that the instruction
was clearly erroneous. In resolving this issue against Peppers, our Supreme Court stated:

"But a defendant cannot challenge an instruction, even as clearly erroneous under
K.S.A. 22-3414(3), when there has been on-the-record agreement to the wording of the
instruction at trial. See, e.g., State v. Angelo, 287 Kan. 262, 278-79, 197 P.3d 337 (2008).
The defendant has invited the error and cannot complain. State v. Adams, 292 Kan. 151,
164, 254 P.3d 515 (2011) (citing State v. Cramer, 17 Kan. App. 2d 623, 632-33, 841 P.2d
1111 [1992]).
". . . This on-the-record agreement to the wording of the instruction was invited
error, and we need not further analyze Peppers argument on this issue." (Emphasis
added.) 294 Kan. at 393.

Peppers is dispositive of Vongnavanh's issue on appeal. Based on Vonganvanh's
agreed-upon written stipulation which he personally signed, the trial court's comparison
of the defendant's proposed jury instructions with the instructions proposed by the State,
and the instructions ultimately provided to the jury, it is apparent that Vongnavanh was
amenable to having the jury consider the two stipulated elements as proven. Most
importantly, and in addition, Vongnavanh's counsel specifically considered and adopted
the language of which the defendant now complains, for the first time on appeal, is
clearly erroneous.

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We hold that Vongnavanh may not claim jury instruction No. 3 is clearly
erroneous because, assuming there was error, the defendant invited that error.

Finally, we note in passing, that even if Vongnavanh had not invited the trial court
to instruct the jury as provided in Instruction 3, his claim of clearly erroneous error is
without merit. See State v. Mburu, 51 Kan. App. 2d 266, 275, 346 P.3d 1086 (2015)
(When a stipulation is submitted to the jury, "'[t]he defendant's stipulation of convicted
felon status satisfies the prosecution's burden of proof for that element of the crime. [I]f
the element of 'convicted felon' is established by stipulation, 'the judge may thereafter
instruct the jury that it can consider the convicted felon status element of the crime as
proven by agreement of the parties in the form of a stipulation.'").

Affirmed.