State v. Patrick

1

NOT DESIGNATED FOR PUBLICATION

No. 116,660

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OSIE PATRICK,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed September 14,
2018. Affirmed in part, vacated in part, and remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

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

BUSER, J.: Following a jury trial, Osie Patrick was convicted of severity level 4
aggravated battery, criminal discharge of a firearm, criminal possession of a weapon by a
convicted felon, and two counts of aggravated assault. Patrick was sentenced to 78
months' imprisonment.

On appeal, Patrick contends the district court erred by: (1) overruling his
objection under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986), to the State's use of a peremptory challenge to strike an African-American
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member of the jury panel; (2) failing to give a lesser included offense instruction of
severity level 7 aggravated battery; (3) giving an instruction on reasonable doubt that
prevented jury nullification; (4) using his criminal history to increase his sentence; and
(5) classifying his 1999 conviction of driving while a habitual violator as a nonperson
felony for purposes of calculating his criminal history score. Finally, Patrick claims the
cumulative effect of the district court's errors denied him a fair trial.

Upon our review, we hold the district court did not err when it overruled Patrick's
Batson challenge, denied his request for a lesser included offense instruction, and
provided the jury with the standard jury instruction on reasonable doubt. As a result, there
is also no cumulative error. Although we hold the district court did not commit
constitutional error in considering Patrick's criminal history during sentencing, we
conclude the court erroneously classified Patrick's previous conviction for driving while a
habitual violator as a nonperson felony. Accordingly, the convictions are affirmed, the
sentences are vacated, and the case is remanded with directions for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On July 18, 2015, Saquisha Clark was with her friends Deirdre Dickerson, Artisha
Dickerson, and Jodecie Jones. After leaving a bar, the four women were invited to a
nearby establishment, the Hell's Lover's Motorcycle Club. Other than Deirdre, who was
pregnant, the women had been drinking alcoholic beverages.

After staying a brief time inside the club, the women decided to leave and returned
to Deirdre's car. As Deirdre began to drive away, Artisha saw her friend, Dennis
Hardwell, sitting on a motorcycle in front of the club. Deirdre stopped and Clark, who
was sitting in the rear passenger seat, rolled down her window so Artisha could talk to
Hardwell. While Artisha was talking with Hardwell, he yelled, "Y'all ho's ain't got no
home training." Clark began to argue with Hardwell and another man, Chester Randall,
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who was nearby. During the argument, Hardwell and Randall remained seated on their
motorcycles.

According to Clark, Patrick then walked up and grabbed her face through the open
window in "kind of a flirty gesture." Patrick told Clark that she needed to "chill out."
Clark recognized Patrick as the father of her cousin's baby, and she told Patrick to get his
hands off her. The verbal altercation escalated, resulting in the two individuals
exchanging punches. As they were fighting, Artisha pulled Clark away from the window
to protect her. When Patrick began leaning through the window, Clark opened the car
door and kicked it which caused Patrick to fall backwards.

Clark saw Patrick reach towards his pocket or waistband. Seconds later, Clark
heard "a loud pow," saw a flash to the side of her face, and smelled gunpowder. As
Deirdre drove away from the scene, Clark realized that she had been shot in her left leg.
The bullet had entered her leg above the knee, struck an artery, and exited below the
knee.

At the hospital, Clark underwent surgery to repair the damage caused by the
gunshot. During the procedure, surgeons removed a vein from Clark's thigh and also
placed a stent in the damaged artery. The stent will remain in the artery for the rest of
Clark's life. Shortly after she was released from the hospital, Clark developed a blood clot
in her left leg which required an emergency room visit. To alleviate the possibility of
further blood clots, Clark is required to take blood thinning medication. Clark explained
that she now has a "drop foot" in the leg where she was shot, which affects her gait.

As a consequence of the shooting, Patrick was charged with severity level 4
aggravated battery in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A), criminal
discharge of a firearm, in violation of K.S.A. 2015 Supp. 21-6308(a)(1)(B), criminal
possession of a weapon by a convicted felon in violation of K.S.A. 2015 Supp. 21-
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6304(a)(3)(A), and two counts of aggravated assault in violation of K.S.A. 2015 Supp.
21-5412(b)(1). The case proceeded to a trial.

At trial, Clark testified about the shooting. She said that Patrick had thrown the
first punch and a few others before she hit back once or twice. Although Clark did not see
Patrick shoot her, she believed he was the shooter because he was "the guy that beat me
up. He's the guy that was right there when I smelled the gunpowder and hearing the flash
and all that. I mean, he's the only one." Artisha and Deirdre both testified that during the
altercation, they saw Patrick pull out a gun and shoot into the car through the open
window.

Detective Steven Molde testified that he interviewed Patrick after the shooting.
Patrick told the detective that he was at the club on the night of the shooting, but he did
not have a gun or shoot Clark. Patrick acknowledged, however, that he and Clark got into
a verbal argument while Clark was in the car. Patrick told Detective Molde that Clark had
first struck him on the head, and he slapped her in response. Patrick saw the car move in
reverse and he jumped out of the way to avoid getting struck. As the vehicle was moving,
Patrick stated that he heard a gunshot but did not know who fired the gun. Four
eyewitnesses, including Hardwell and Randall, testified that Patrick did not have a gun
and did not shoot Clark.

The jury convicted Patrick of severity level 4 aggravated battery, criminal
discharge of a firearm, criminal possession of a firearm, and two counts of aggravated
assault. Based on a criminal history score of F, the district court sentenced Patrick to a
controlling sentence of 78 months in prison. He filed a timely appeal.




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BATSON CHALLENGE

Patrick, an African-American, first contends the district court erred by overruling
his Batson objection to the State's peremptory challenge of E.M., a potential juror who
was also African-American. Specifically, Patrick argues that during voir dire the State did
not give a sufficiently race-neutral reason for its challenge and the district court failed to
make a ruling on whether there was evidence of purposeful discrimination.

"The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution 'applies to the State's privilege to strike prospective jurors through
peremptory challenges.'" State v. Dupree, 304 Kan. 43, 57, 371 P.3d 862 (quoting State v.
Kettler, 299 Kan. 448, 461, 325 P.3d 1075 [2014]), cert. denied 137 S. Ct. 310 (2016). In
Batson, the United States Supreme Court held that the Equal Protection Clause prohibits
prosecutors from exercising peremptory challenges against potential jurors solely because
of the juror's race. 476 U.S. at 89.

Under Batson, an objection to the State's use of a peremptory challenge during
jury selection is analyzed in three distinct steps, with different standards of review for
each step. Dupree, 304 Kan. at 57.

"'First, the party challenging the strike must make a prima facie showing that the
other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step.
"'Second, if a prima facie case is established, the burden shifts to the party
exercising the strike to articulate a race-neutral reason for striking the prospective juror.
This reason must be facially valid, but it does not need to be persuasive or plausible. The
reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
the explanation. The opponent of the strike continues to bear the burden of persuasion.
"'Third, the trial court must determine whether the objecting party has carried the
burden of proving purposeful discrimination. This step hinges on credibility
determinations. "[U]sually there is limited evidence on the issue, and the best evidence is
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often the demeanor of the party exercising the challenge. As such, it falls within the trial
court's province to decide, and that decision is reviewed under an abuse of discretion
standard." [Citations omitted.]'" Dupree, 304 Kan. at 57-58.

In this case, the parties acknowledge there was a prima facie showing that the
State exercised a peremptory challenge on the basis of race. The parties focus their
arguments on whether the district court (1) erred by finding the State articulated race-
neutral reasons for striking an African-American potential juror; and (2) abused its
discretion in concluding that Patrick did not establish purposeful discrimination.

The Peremptory Challenge of E.M.

During voir dire, the prosecutor asked whether any of the potential jurors or their
family had been a victim of a violent act. E.M. responded that her uncle was murdered
and explained that the person who killed her uncle was prosecuted. The following
exchange between the prosecutor and E.M. occurred:

"[PROSECUTOR]: To the best of your knowledge, any ill will towards law
enforcement or the prosecutor, State of Kansas, or anything to that effect?
"[E.M.]: Yes.
"[PROSECUTOR]: Do you believe that you can give the defense and the State a
fair trial?
"[E.M.]: Yes.
"[PROSECUTOR]: And, I guess, I want to make sure I understood you. You
personally hold ill will towards law enforcement or the prosecution because of that
incident?
"[E.M.]: Oh, no.
"[PROSECUTOR]: I thought you said yes a minute ago, and so I just wanted to
make sure.
"[E.M.]: No."

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Later in voir dire, the prosecutor questioned E.M. about her jury information card
which indicated that she had transportation issues. When asked if transportation would be
a concern for her, E.M. responded, "No. I was—I mean, I would have to leave by 4:40."
The prosecutor then asked E.M. if there would be times when she would have no control
over what time she could arrive at court, to which E.M. replied, "No."

Prior to excusing the potential jurors after the first day of voir dire, the district
court asked the parties whether they wanted to resume the trial at 9 a.m. in the morning.
After defense counsel reminded the district court that E.M. had transportation issues, the
court asked E.M. if she could appear in court at that time. E.M. agreed, but asked if she
could leave at 4:30 p.m. during the trial's remaining days in order to ride the bus. At the
conclusion of voir dire, the State peremptorily challenged E.M.

Defense counsel objected to the challenge citing Batson, and noting it was the
second African-American struck and because there were "four African-Americans on the
panel of 28, . . . this would be eliminating half of them so far by strikes." Defense counsel
continued, "I think there was some confusion, but she said she didn't have a problem with
the police or anything about that. So we are challenging this."

In response, the prosecutor provided his reasons for striking E.M. and the other
non-white potential jurors. Regarding E.M., the prosecutor explained "there was some
confusion . . . at first, she said there was ill will, and then she said there wasn't ill will
towards law enforcement. I'm not quite sure where the answer actually falls." The
prosecutor continued:

"[B]ut, more importantly, Judge, what's concerning to the State is her transportation. . . .
[S]he asked us for special accommodations to break early for the day, I mean, at 4:50
every day. That causes the State concerns, as well. If we have a witness on past 4:50 is
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she going to hold a grudge towards the State? Is she going to hold a grudge towards the
defense?"

Defense counsel responded that E.M. arrived at court on time every day and
asserted the State was challenging her because she could not afford a car. Defense
counsel also noted that E.M. clarified that she had no ill will towards law enforcement.
As a result, defense counsel argued the prosecutor's reasons were not valid, race-neutral
reasons to strike E.M.

The prosecutor emphasized that he had "issues later in the week" which required
that he conclude the trial in a timely manner. He argued that his reasons were race-neutral
and invited defense counsel to show any pattern of racial bias. The prosecutor also
reminded the district court that "[E.M.'s] card specifically said I may be late at times, and
then she specifically asked . . . if we could make adjustments or accommodations for her.
So I think it was an issue." The prosecutor further explained, "I told both Court and
counsel at the very beginning of this week that my wife is leaving town and I have the
responsibility [for] my kids. I am trying to get this trial done before she leaves town,
because I have to be there to pick them up. So I do believe that I have expressed race-
neutral reasons."

In ruling on the issue, the district court cited the applicable three-step test used in
analyzing Batson challenges. In explaining the three-part test, the district court explicitly
noted that after the State offers a race-neutral reason, the district court would determine
whether purposeful discrimination had been shown by the available evidence. The district
court also elaborated on certain indicators of purposeful discrimination as set forth in
caselaw.

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After noting the parties' concession to a prima facie showing, the district court
considered the second step in the Batson analysis and determined the State had provided
race-neutral reasons for the peremptory strike. The district judge explained:

"I couldn't tell the nature or the confusion. In fact, I've—when she answered that first
way she seemed very emphatic, and I wrote it down as such. I have it in my notes under
her name that she answered that way. She had ill will against law enforcement. I think
even the prosecution was included in that, and then I did identify when she changed her
answer on further questions."

Turning to the State's second reason for striking E.M.—her transportation issues—
the district court commented that E.M. had indeed "indicated she could be late in the
morning and it would be a hardship for her to stay to the normal end of the day because
she needed to be home earlier than that."

After concluding that the State provided race-neutral reasons for the strike, the
district judge considered whether the reasons were a pretext for impermissible racial
discrimination. The district court commented that the prosecutor had struck another
potential juror who was not African-American for the same reasons as E.M. The district
judge ruled that Patrick failed to show purposeful discrimination, stating, "And so I'm
finding the State is neutral, has been consistent in looking at and observing during this
session. I don't see any of the required purposeful discrimination that I believe is
required."

Ruling Regarding the State's Race-Neutral Reasons for Striking E.M.

Patrick alleges the States' two reasons for striking E.M. reveal a discriminatory
intent. Specifically, Patrick claims that because the State's reasons are not supported by
the record, they are not facially valid, and reveal an inherent discriminatory intent.

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Under the second step of the Batson test, the burden shifts to the State to articulate
a race-neutral reason for striking the prospective juror. In this regard, "[t]he State carries
a relatively low burden to provide a race-neutral reason for a strike—the justification
must be facially valid, but it need not necessarily be plausible or persuasive." Dupree,
304 Kan. at 59.

Patrick first argues that E.M.'s conflicting answers about her ill will towards law
enforcement were resolved by her last answer which clarified that she did not have any ill
will. But conflicting answers can provide the State with a race-neutral reason to
peremptorily challenge a prospective juror. See Dupree, 304 Kan. at 59 (finding that a
potential juror's conflicting responses to whether she would convict for felony murder
provided a race-neutral reason for challenge).

Next, Patrick argues that the record does not support the prosecutor's concerns
about E.M.'s transportation issues. As detailed earlier, however, E.M.'s statements on her
jury card and her in-court statements clearly provide a factual basis to support the
prosecutor's concerns that E.M. could have difficulties arriving to court on time and
leaving after 4:30 p.m.

On this thorough record, we are persuaded the prosecutor proffered plausible and
persuasively valid, race-neutral reasons for peremptorily challenging E.M.

Ruling that Patrick Did Not Show Purposeful Discrimination

Next, Patrick argues that the district court abused its discretion by failing to clearly
delineate the second and third steps in his Batson ruling. Patrick asserts that "[b]y not
clearly delineating the two steps, the district court denied Mr. Patrick an opportunity to
sufficient[ly] argue and put on evidence to show purposeful discrimination."

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In the final step of the Batson analysis, the district court must determine whether
the defendant has carried the burden of proving purposeful discrimination. We review
this determination for abuse of discretion. Kettler, 299 Kan. at 462. "A district court
abuses its discretion when it makes a decision that is based on an error of law or fact; or
when it makes a decision that is otherwise arbitrary, fanciful, or unreasonable." Dupree,
304 Kan. at 58.

Our Supreme Court has held:

"There is no formalistic requirement that the steps in the Batson analysis be
labeled and explicitly delineated, as long as it is clear from the record that each step was
in fact considered.
"As long as a trial judge affords the parties a reasonable opportunity to make
their respective records, the judge may express a Batson ruling on the credibility of a
proffered race-neutral explanation in the form of a clear rejection or acceptance of the
Batson challenge." State v. Angelo, 287 Kan. 262, Syl. ¶¶ 11-12, 197 P.3d 337 (2008).

Although not required, in this case the district court explained the three-step
Batson test, encouraged extensive argument by the parties, and ultimately stated its
reasons for ruling on each step. For example, in addressing the second step, the district
court found "the State has given racially-neutral reasons for this preemptory strike." Next,
after explaining why it found the State's reasons were race-neutral, the court turned to the
third step and noted it was analyzing whether the State's reasons were a "coverup for
impermissible racial discrimination." In explaining why Patrick failed to prove
purposeful discrimination, the district judge noted that the State was neutral in its reasons
and "I don't see any of the required purposeful discrimination that I believe is required."

Finally, the record does not support Patrick's assertion that he was not permitted to
offer evidence of purposeful discrimination. Patrick's attorney was afforded every
opportunity to present evidence and argument regarding this issue.
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The district court did not err in overruling Patrick's Batson challenge.

LESSER INCLUDED OFFENSE INSTRUCTION

At the close of evidence, Patrick requested a lesser included offense instruction of
severity level 7 aggravated battery. The district court denied the request, reasoning that
Clark's injuries were "not trivial, minor, or in the nature of bruising."

Patrick was charged and convicted of severity level 4 aggravated battery under
K.S.A. 2015 Supp. 21-5413(b)(1)(A), which defined the offense as "[k]nowingly causing
great bodily harm to another person or disfigurement of another person." By contrast,
severity level 7 aggravated battery is defined as "knowingly causing bodily harm to
another person with a deadly weapon, or in any manner whereby great bodily harm,
disfigurement or death can be inflicted." K.S.A. 2015 Supp. 21-5413(b)(1)(B). The
pertinent distinction between the two crimes in this case is whether Patrick knowingly
caused great bodily harm or merely caused bodily harm. Patrick contends the district
court erred by denying his request to instruct the jury on the lesser included offense of
severity level 7 aggravated battery.

An appellate court reviews claimed failures to instruct on lesser included crimes
using the following framework:

"When reviewing the failure to give a lesser included instruction, (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
13

court must determine whether the error was harmless." State v. Soto, 301 Kan. 969, Syl.
¶ 9, 349 P.3d 1256 (2015).

In this case, at the instructions conference, Patrick objected to the district court's
denial of his request for the lesser included offense instruction. As a result, this issue is
properly preserved for appeal. See K.S.A. 2017 Supp. 22-3414(3); State v. Brammer, 301
Kan. 333, 341, 343 P.3d 75 (2015) ("[A]n attorney must object on the record to the
giving or omission of an instruction before the jury retires to consider the verdict, with
counsel clearly stating the reason for the objection.").

Our Supreme Court has recognized that severity level 7 aggravated battery is a
lesser included offense of severity level 4 aggravated battery. State v. Williams, 295 Kan.
506, 521, 286 P.3d 195 (2012). Thus, an instruction for severity level 7 aggravated
battery was legally appropriate in this case.

Given that the requested instruction was legally appropriate, we next consider
whether the failure to give the instruction was erroneous because it was factually
appropriate. State v. Knighten, 51 Kan. App. 2d 417, 433-34, 347 P.3d 1200 (2015).
Lesser included offense instructions must be given if "there is some evidence which
would reasonably justify a conviction of some lesser included crime." K.S.A. 2017 Supp.
22-3414(3). To determine if the instruction is factually appropriate, an appellate court
considers whether "'there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction.'" State v.
Perez, 306 Kan. 655, 667-68, 396 P.3d 78 (2017) (quoting State v. Williams, 303 Kan.
585, 598-99, 363 P.3d 1101 [2016]). If true, the lesser included offense instruction should
be given.

Here, the relevant distinction between the charged crime and the requested lesser
included crime is whether the victim suffered "bodily harm" or "great bodily harm."
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K.S.A. 2015 Supp. 21-5413(b)(1)(A), (B). Although the distinction is not statutorily
defined, our Supreme Court has defined great bodily harm as "more than slight, trivial,
minor, or moderate harm, and does not include mere bruising, which is likely to be
sustained by simple battery." State v. Green, 280 Kan. 758, 765, 127 P.3d 241 (2006).

"Ordinarily, whether a victim has suffered great bodily harm is a question of fact
for the jury to decide." Williams, 295 Kan. at 523. In Williams, the Supreme Court held
that a lesser included instruction was necessary because a reasonable jury could conclude
that a victim suffered mere bodily harm when she was stabbed in the head with a steak
knife which required about 100 stitches in order to close the wound. 295 Kan. at 522-23.
Importantly, the Williams court noted that the victim minimized her pain and did not
require follow up medical care other than the removal of stitches. 295 Kan. at 523. In
Williams the Supreme Court reaffirmed the "seemingly straightforward proposition" that
"whether a victim has suffered great bodily harm is a question of fact for the jury to
decide." 295 Kan. at 523.

On the other hand, our Supreme Court in State v. Brice, 276 Kan. 758, 774, 80
P.3d 1113 (2003), whose analysis the Williams court appeared to specifically approve,
determined that a lesser included offense instruction for battery, which requires mere
bodily harm, was not warranted when the victim sustained a through and through gunshot
wound. In that case, the bullet entered the victim's upper right thigh and exited through
his right buttock without hitting bone, major arteries, veins, or nerves, although it caused
a scar, an overnight stay at the hospital, and the loss of a week and a half of work. Our
Supreme Court noted that the district court "could determine that a bullet wound, even
one that missed bone, major arteries, veins, and nerves, is not slight, trivial, moderate, or
minor and will not support a lesser included instruction for battery." 276 Kan. at 774.

In this case, there was abundant evidence of the serious nature and extent of
Clark's injuries. The bullet entered Clark's left leg above the knee and exited below the
15

knee. As the bullet passed through her leg, it struck an artery. Due to the extent of the
damage to the artery, doctors were required to perform surgery, in which they removed a
vein from Clark's thigh and placed a stent in the artery. At trial, Clark explained that the
stent will remain in the artery for the rest of her life.

Shortly after being released from her three-day stay at the hospital, Clark
experienced severe pain in her left leg caused by a blood clot. As a result, Clark received
emergency medical treatment. Clark testified that she must take blood thinning
medication for the rest of her life. Because of her "drop foot" on her left leg, Clark's
ability to walk and run is impaired. At trial, the jury was shown pictures of the bullet
wounds on Clark's leg as they appeared the day she was shot and the subsequent scarring.

Although it is generally within the jury's province to determine whether injuries
constitute mere bodily harm or great bodily harm, we hold the district court did not err by
declining to give the lesser included offense instruction. In short, there was no evidence
suggesting the nature of the harm suffered by Clark was slight, trivial, minor, or moderate
harm to support an instruction of the lesser included offense.

Finally, for the sake of completeness, assuming the district court did err in failing
to give the lesser included offense instruction, we will consider harmless error. If the
district court errs by failing to give a lesser included offense instruction, the error is
reversible only if an appellate court determines there is a "'reasonable probability that the
error will or did affect the outcome of the trial in light of the entire record.'" State v.
Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016) (quoting State v. Plummer, 295 Kan. 156,
168, 283 P.3d 202 [2012]).

As discussed earlier, there was overwhelming evidence of great bodily harm.
Moreover, Patrick's theory of defense at trial was not that Clark sustained mere bodily
harm but that he did not shoot and injure Clark. In light of the evidence of the serious
16

nature and extent of Clark's injuries, and the theory of Patrick's defense at trial, there is
no reasonable probability that the jury would have convicted Patrick of severity level 7
aggravated battery. Accordingly, even assuming error by the district court for failing to
provide the lesser instruction, we conclude any such error was harmless.

REASONABLE DOUBT INSTRUCTION

Patrick next contends the district court erred when instructing the jury on
reasonable doubt. He argues the instruction improperly discouraged the jury from
exercising its power to nullify the verdict.

Patrick acknowledges that at trial he did not object to the instruction on reasonable
doubt. Under these circumstances, an appellate court applies a more rigorous standard in
deciding whether to set aside the jury's verdict and order a new trial. See State v. Briseno,
299 Kan. 877, 882, 326 P.3d 1074 (2014). In such cases, an appellate court may reverse
only if the jury instruction as given was clear error. See K.S.A. 2017 Supp. 22-3414(3).
In determining clear error, an appellate court first considers whether the district court
erred at all, which requires reviewing the trial record to determine whether the instruction
was legally and factually appropriate. Williams, 295 Kan. 506, Syl. ¶ 4. If the district
court erred, we consider whether we are "firmly convinced that the jury would have
reached a different verdict had the instruction error not occurred." 295 Kan. 506, Syl. ¶ 5.

Patrick specifically challenges the use of the word "should" in the last sentence of
the following instruction:

"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of each of the claims required to be proved by the State,
you should find the defendant guilty." (Emphasis added.)
17

This instruction mirrors the pattern instruction on reasonable doubt, PIK Crim. 4th
51.010 (2017 Supp.). District courts are encouraged to use these pattern instructions "as
those instructions have been developed by a knowledgeable committee to bring accuracy,
clarity, and uniformity to jury instructions." State v. Allen, 52 Kan. App. 2d 729, 734, 372
P.3d 432 (2016), rev. denied 306 Kan. 1320 (2017).

Our Supreme Court has established 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." State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011). While
jurors in a criminal case have the power of jury nullification the proper duty of a jury is to
accept the rules of law given to it, apply those rules to determine whether facts are
proven, and deliver a verdict based on those considerations. State v. McClanahan, 212
Kan. 208, 217, 510 P.2d 153 (1973). For those reasons, criminal defendants are not
entitled to have the jury explicitly instructed on its inherent power of nullification.
Naputi, 293 Kan. at 66.

While a criminal defendant is not entitled to an instruction on jury nullification,
the jury instructions may not forbid a jury from exercising its inherent power of
nullification. State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014). In Smith-
Parker, the district court instructed the jury that "'[i]f you do not have a reasonable doubt
from all the evidence that the State has proven murder in the first degree on either or both
theories, then you will enter a verdict of guilty.'" 301 Kan. at 163. The defendant argued
that the instruction should have used the word "should" instead of "will." 301 Kan. at
163. Our Supreme Court agreed and held that the words "must" and "will" "fly too close
to the sun of directing a verdict for the State. A judge cannot compel a jury to convict,
even if it finds all elements proved beyond a reasonable doubt." 301 Kan. at 164.

18

Here, Patrick attempts to equate the jury instruction given in his case with the
instruction struck down in Smith-Parker. In support of his argument, Patrick asserts that,
under certain dictionary definitions, "should" is a synonym for "must." He then claims
that because "should" and "must" denote the same meaning, under Smith-Parker "it is
also error to instruct a jury that, in the absence of reasonable doubt, it 'should' find the
defendant guilty."

Contrary to Patrick's argument, "should" does not equate to "must" or "will." As
our court in Allen concluded:

"Unlike the words 'must,' 'shall,' and 'will,' the word 'should' does not express a
mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of
action and encourages following the advised path. Accordingly, the reasonable doubt
instruction contained at PIK Crim. 4th 51.010, which states that if the jury has no
reasonable doubt as to the truth of each [of] the claims asserted by the State it 'should find
the defendant guilty,' does not usurp the jury's inherent power of nullification." 52 Kan.
App. 2d 729, Syl. ¶ 5.

See also State v. McDuffie, No. 113,987, 2017 WL 2617648, at *8-9 (Kan. App.)
(unpublished opinion), rev. denied 306 Kan. 1327 (2017); State v. Campbell, No.
114,167, 2016 WL 3407598, at *3-4 (Kan. App. 2016) (unpublished opinion) (collecting
cases), rev. denied 306 Kan. 1321 (2017).

Allen is dispositive of this issue. We find no error in the language of the
instruction.

Next, Patrick attempts to avoid the adverse result in Allen and similar cases by
asserting the alleged instructional error was compounded by the prosecutor's remarks
during voir dire, which essentially suggested that the jurors "must follow the law." While
the power of jury nullification exists, however, it is still "the proper function and duty of
19

a jury to accept the rules of law given to it in the instructions by the court, apply those
rules in determining what facts are proven and render a verdict based thereon."
McClanahan, 212 Kan. 208, Syl. ¶ 3. In fact, our court has previously held that similar
statements by a prosecutor do not improperly prevent the jury from exercising its power
of nullification. See State v. Spalding, No. 114,561, 2017 WL 1433513, at *6-7 (Kan.
App. 2017) (unpublished opinion); State v. Cuellar, No. 112,535, 2016 WL 1614037, at
*2-3 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1322 (2017).

We conclude that the prosecutor's colloquy during voir dire simply explained, in a
general way, the jury's duty to follow the law. When posing questions to the prospective
jurors, the prosecutor did not even reference the jury instruction on reasonable doubt or
the concept of jury nullification. As a result, the prosecutor's statements did not transform
the appropriate jury instruction on reasonable doubt into an improper prohibition on jury
nullification. We find no error.

CUMULATIVE ERROR

Patrick contends that if no single error at trial was sufficient to require reversal,
the cumulative effect of the errors he has claimed on appeal nevertheless deprived him of
a fair trial.

A single error cannot constitute cumulative error. State v. Williams, 299 Kan. 509,
566, 324 P.3d 1078 (2014), overruled on other grounds by State v. Dunn, 304 Kan. 773,
375 P.3d 332 (2016). Similarly, it is an understatement to observe that no errors cannot
be aggregated to constitute cumulative error. Given that we have considered Patrick's
claimed trial errors on appeal and found no single error, let alone multiple errors in the
criminal proceedings which resulted in Patrick's convictions, the issue of cumulative
error is without merit.

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SENTENCING

During sentencing, the district court determined that Patrick's criminal history
score was F. This calculation was based, in part, on the classification of Patrick's 1999
conviction for driving while a habitual violator as a nonperson felony. At the time Patrick
was convicted of driving while a habitual violator, the offense was classified as a
nonperson felony. K.S.A 1998 Supp. 8-287. However, when Patrick committed the
crimes in the present case, driving while a habitual violator was classified as a class A
nonperson misdemeanor. K.S.A. 2015 Supp. 8-287.

For the first time on appeal, Patrick contends the district court imposed an illegal
sentence when it classified his 1999 conviction for driving while a habitual offender as a
nonperson felony for criminal history purposes. We may consider this issue because a
defendant may challenge a sentence for the first time on appeal. State v. Fisher, 304 Kan.
242, 263-64, 373 P.3d 781 (2016). "Whether a sentence is illegal within the meaning of
K.S.A. 22-3504 is a question of law over which the appellate court has unlimited
review." 304 Kan. at 263.

In State v. Keel, 302 Kan. 560, 573, 357 P.3d 251 (2015), our Supreme Court
determined that "[t]he provisions of the [Kansas Sentencing Guidelines Act] itself . . .
instructed that prior convictions or adjudications be classified at the time of the current
crime of conviction." The court explained:

"Because it is a fundamental rule of sentencing that the penalty parameters for a crime are
established at the time the crime was committed, the classification of a prior conviction
or juvenile adjudication for criminal history purposes under the KSGA must be based on
the classification in effect for the comparable offense when the current crime of
conviction was committed." 302 Kan. 560, Syl. ¶ 9.

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In reaching this determination, the court in Keel relied in part on what is now
K.S.A. 2017 Supp. 21-6810(d)(8), which states: "Prior convictions of a crime defined by
a statute that has since been repealed shall be scored using the classification assigned at
the time of such conviction." The court found that "[t]he clear implication is that if the
statute has not been repealed, then the crime is scored using the classification in the
statute at the time of the current crime of conviction." 302 Kan. at 580.

Although the prior conviction at issue in Keel was a pre-KSGA offense, Patrick
argues the rule and reasoning in Keel required the district court to classify his 1999
conviction based on the classification in effect when he committed the current crimes of
conviction. The State candidly concedes that, under Keel, the district court erred by
classifying his 1999 driving while a habitual violator conviction as a nonperson felony
instead of a class A nonperson misdemeanor. Both parties agree that our court should
remand for resentencing.

We agree that Keel is dispositive. Accordingly, we vacate Patrick's sentence and
remand the matter to the district court with directions to reclassify the 1999 driving while
a habitual violator conviction as a class A nonperson misdemeanor, recalculate Patrick's
criminal history score based on the reclassification, and resentence Patrick based on the
recalculated criminal history score.

On another sentencing issue, Patrick contends the district court violated his
constitutional rights under the Sixth and Fourteenth Amendments to the United States
Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000), when it used his prior convictions to increase his sentence without
requiring the State prove them beyond a reasonable doubt before a jury. Patrick
acknowledges that the Kansas Supreme Court rejected this argument in State v. Ivory,
273 Kan. 44, 45-48, 41 P.3d 781 (2002).

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Our court is duty bound to follow Kansas Supreme Court precedent absent some
indication the court is departing from its earlier position. See State v. Hall, 298 Kan. 978,
983, 319 P.3d 506 (2014). There is no indication that our Supreme Court is departing
from its holding in Ivory. See State v. Williams, 306 Kan. 175, 176, 392 P.3d 1267 (2017)
(reaffirming Ivory). We find no error in this regard.

The convictions are affirmed, the sentences are vacated, and the case is remanded
with directions for resentencing.