State v. Pruitt

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NOT DESIGNATED FOR PUBLICATION

No. 116,535

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LESLIE D. PRUITT,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed May 11, 2018.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and SCHROEDER, JJ.

BUSER, J.: This is a direct appeal by Leslie D. Pruitt, who was convicted by a jury
of multiple violent felony offenses relating to a shooting that occurred on March 6, 2015,
in Wichita. On appeal, Pruitt raises four issues. First, he asserts the combined aiding and
abetting and reasonable foreseeability instruction provided to the jury was improper.
Second, Pruitt claims error because the district court allowed evidence of gang affiliation
at trial. Third, he asserts the district court lacked jurisdiction to modify his jail time credit
after sentencing and improperly ordered him to pay restitution. Finally, Pruitt contends
the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
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Ed. 2d 435 (2000), when it considered his criminal history to enhance his sentences.
Finding no reversible error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of March 6, 2015, David Simonton drove a semitrailer truck to a
local Sam's Club to make a delivery. His cousin, Craig Wolfe, accompanied him on the
delivery. Upon detaching the trailer, the two men planned "[t]o find a club [and] get some
weed" that evening. Simonton drove the cab to a nearby Walmart and purchased a small
quantity of marijuana from some individuals. Simonton then encountered three men in
the parking lot, later identified as Pruitt, Dreamis Webster, and Mondrell Pruitt, and he
asked about purchasing some marijuana. Webster told Simonton he could find some
marijuana. Simonton and Pruitt then exchanged phone numbers, and Pruitt, Webster, and
Mondrell went to Pruitt's home. Of note, Mondrell testified as a State's witness at trial.

Unbeknownst to Simonton, Pruitt and Webster did not intend to sell him
marijuana. Instead Pruitt, Webster, and Pruitt's mother discussed "ripping off" Simonton
and Wolfe by robbing them. After Simonton and Pruitt talked by phone, the men agreed
to meet at Walmart to consummate what Simonton understood would be his purchase of
marijuana. According to Mondrell, Pruitt drove his car with the other two men as
passengers to the front of Walmart. At that time Pruitt was armed with a semiautomatic
handgun and Webster had a revolver.

Upon the men's arrival at Walmart, Simonton was seated in the driver's seat of the
truck's cab with Wolfe in the passenger's seat. Pruitt informed Simonton that he "didn't
want to do a deal in front of Wal-Mart," and he drove behind an adjacent building.
Simonton and Wolfe followed in the cab.

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Simonton parked his vehicle and allowed Pruitt and Webster to enter the truck's
cab. Simonton showed the men $50 he had to purchase marijuana. Shortly thereafter,
Webster brandished his revolver while demanding Simonton's money. Pruitt also
displayed his semiautomatic firearm. A scuffle ensued inside the cab, during which
Webster initially pointed his revolver at Wolfe's head and then at Simonton. At some
point, Pruitt left the cab.

While Webster tussled with Simonton and Wolfe inside the truck's cab, Pruitt went
around to the driver's side of the cab and attempted to open the driver's side door. During
this encounter, Webster recalled the driver's side door swinging open and shut. When
Simonton continued to resist, Wolfe heard Pruitt yell to Webster, "[Expletive] it, shoot
them." Wolfe then saw Webster fire two shots at Simonton from "[n]ot even a foot."
Wolfe then heard a third, "kind of muffled" shot which did not come from Webster's
revolver. In total, Simonton sustained three gunshot wounds: one to the right side of his
face, another to his right shoulder, and one to his left lower abdomen.

After the shooting, investigating police officers searched the area and found one
casing from a semiautomatic firearm about 150 to 200 feet from the truck's cab. As a
consequence of the shooting, Simonton sustained a cervical spinal cord injury which
resulted in paraplegia. He testified, "I will never be able to walk again."

After his arrest, and upon being advised of his Miranda rights, Pruitt was
interviewed by Detective William Crowe. Initially, Pruitt related that he had gone to
Walmart on the night of the shooting to purchase a video game controller. Pruitt recalled
that he had talked to a man in a semitrailer truck who inquired about purchasing
marijuana. Pruitt told the detective that he told the man he did not know. Pruitt also told
Detective Crowe that he did not sell marijuana. After this conversation, Pruitt said
Webster and another unknown man talked to the truck driver while Pruitt remained in the
car. The men then left the Walmart parking lot. Upon returning to his residence, Pruitt
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told Detective Crowe that he played video games, put his child to bed, and that Webster
and the other man left the house for a while. According to Pruitt, however, he did not
leave the residence the rest of the evening.

After listening to Pruitt's exculpatory account, Detective Crowe confronted him
with incriminating evidence from a surveillance camera which placed him at the scene of
the shooting. Upon being challenged, Pruitt advised the detective that he was going to tell
him what really happened. Pruitt admitted that the group had arranged to sell Simonton
marijuana. Upon their return to Walmart, Pruitt acknowledged entering the truck's cab
and talking to Simonton to insure that he had money for the drug deal. After advising
Webster that the driver had money, Pruitt said he left the truck and reentered his
automobile where he remained for the duration of the incident.

Pruitt advised that Webster entered the truck's cab, he heard two shots, and
Webster left the cab. Pruitt reported that from inside his car he could not see what
transpired inside the cab. After Webster ran some distance, Pruitt drove over to him and
picked him up. According to Detective Crowe, while Pruitt initially said that Webster had
a handgun, he later changed his account and said that neither he nor Webster had a
handgun that evening.

The State charged Pruitt in a six count complaint:

 Count 1, attempted murder in the first degree, a severity level 1 person
felony in violation of K.S.A. 2014 Supp. 21-5301(a) and K.S.A. 2014
Supp. 21-5402(a), on the basis that Pruitt committed an overt act, shot
Simonton with a handgun, toward the perpetration of murder in the first
degree;
 Count 2, attempted aggravated robbery, a severity level 5 person felony in
violation of K.S.A. 2014 Supp. 21-5301(a) and K.S.A. 2014 Supp. 21-
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5420(b)(1), on the basis that Pruitt committed an overt act, pointed a
handgun at Simonton and Wolfe and demanded money, toward the
perpetration of aggravated robbery;
 Count 3, aggravated assault, a severity level 7 person felony in violation of
K.S.A. 2014 Supp. 21-5412(b)(1), on the basis that Pruitt unlawfully and
knowingly placed Wolfe in reasonable apprehension of immediate bodily
harm with a deadly weapon, to-wit: a handgun;
 Count 4, criminal possession of a weapon by a convicted felon, a severity
level 8 nonperson felony in violation of K.S.A. 2014 Supp. 21-6304(a)(1);
 Count 5, use of a communication facility in an attempt or conspiracy to
commit or a criminal solicitation of a drug sale or purchase, a severity level
8 nonperson felony in violation of K.S.A. 2014 Supp. 21-5707(a)(2); and
 Count 6, aggravated battery, a severity level 4 person felony in violation of
K.S.A. 2014 Supp. 21-5413(b)(1)(A), on the basis that Pruitt unlawfully
and knowingly caused great bodily harm to another, to-wit: Simonton.

At the conclusion of the trial, the jury found Pruitt guilty of the lesser included
offense of attempted second-degree murder and the other crimes charged. Pruitt filed a
motion for new trial and judgment of acquittal, which the district court denied. The
district court sentenced Pruitt to a controlling sentence of 200 months with 36 months'
postrelease supervision.

Pruitt filed this appeal.

OBJECTION TO INSTRUCTION NO. 9

On appeal, Pruitt first objects to Instruction No. 9, the combined aiding and
abetting and reasonable foreseeability jury instruction the district court provided to the
jury. Pruitt argues the instruction "misstated the law, misled the jury, and permitted the
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jury to convict him of crimes without finding he had the required culpable mental state."
The State responds that Pruitt did not sufficiently raise a contemporaneous objection to
Instruction No. 9 at trial and that the instruction was legally and factually appropriate.

When reviewing challenges to a district court's jury instruction, Kansas courts
follow a multistep analysis:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless.'" State v. Woods, 301
Kan. 852, 876, 348 P.3d 583 (2015).

With regard to the first step in the analysis, the State complains that Pruitt did not
preserve this issue for appellate review. At trial, during the jury instructions conference,
the following discussion occurred with regard to Instruction No. 9:

"[THE COURT]: The next [jury instruction] is aiding and abetting and
foreseeability. Two separate instructions but combined into one. Both are straight PIK
except one in the second paragraph, specifically to Counts 2, 3, and 6.
"Any objection?
"[THE STATE]: No. For the record, the reason why I separated them out like
that is because obviously Counts 2, 3, and 6 are general intent crimes and Count 1 is a
specific intent crime that requires both individuals to have the same intent.
"[DEFENSE COUNSEL]: And, Judge, I understand this is PIK, so I know it's
completely normal here. But just for what it's worth, I just don't like the way this—the
PIK instruction is written. To me it sounds so much like almost felony murder and how
it—how it operates. So just for what it's worth, I'm objecting based on that.
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"THE COURT: All right. I will note your objection. I will overrule. I think it's
appropriate under the circumstances."

On appeal, the State asserts that defense counsel's statement did not constitute a
sufficient objection to preserve this issue for appellate review because it was

"general and [defense counsel] did not clarify what he meant by 'it sounds so much like
almost felony murder and . . . how it operates.' He did not tell the district court what part
of the instruction he believed was similar to felony murder, nor did he explain how the
operation of the instruction was objectionable."

Kansas law provides that, absent "an objection stating specific grounds," an
appellate court will review jury instructions given at a trial for clear error. State v.
Hammond, 251 Kan. 501, 509, 837 P.2d 816 (1992). Here, although defense counsel
generally objected to Instruction No. 9, he never specified what part of the instruction's
language was objectionable and why it was legally or factually improper. Rather, he
described the instruction as "completely normal" but that he did not like the way the
combined PIK instruction was written. His comment that the wording was "so much like
almost felony murder" does not clarify the basis for the objection. Moreover, defense
counsel's vague complaint bears no resemblance to the argument Pruitt now raises on
appeal.

Because Pruitt did not raise a specific objection to Instruction No. 9 at trial, we
will review the district court's ruling for clear error. See State v. Cameron, 300 Kan. 384,
388, 329 P.3d 1158 (2014). As a consequence, Pruitt "'must firmly convince [this court]
that the giving of [a different] instruction would have made a difference in the verdict.'"
State v. Soto, 301 Kan. 969, 984, 349 P.3d 1256 (2015).

The second and third steps of the analysis consider the legal and factual
appropriateness of a challenged instruction, employing an unlimited review of the entire
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record. See State v. Plummer, 295 Kan. 156, 161-63, 283 P.3d 202 (2012). Pruitt
contends the combination of the two instructions as part of a single jury instruction
misstated Kansas law and confused the jury. Accordingly, we will consider the legal
appropriateness of Instruction No. 9, which provided:

"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime or advises, hires, counsels, [or] procures
another to commit the crime.
"As to Counts 2, 3, and 6:
"The person is also responsible for any other crime committed in carrying out or
attempting to carry out the intended crime, if the person could reasonably foresee the
other crime as a probable consequence of committing or attempting to commit the
intended crime."

As noted above, Count 2 charged Pruitt with attempted aggravated robbery; Count
3 charged Pruitt with aggravated assault; and Count 6 charged Pruitt with aggravated
battery.

Pruitt contends Instruction No. 9 "failed to reflect Kansas law," specifically K.S.A.
2014 Supp. 21-5210. In relevant part, that statute provides:

"(a) A person is criminally responsible for a crime committed by another if such
person, acting with the mental culpability required for the commission thereof, advises,
hires, counsels or procures the other to commit the crime or intentionally aids the other in
committing the conduct constituting the crime.
"(b) A person liable under subsection (a) is also liable for any other crime
committed in pursuance of the intended crime if reasonably foreseeable by such person as
a probable consequence of committing or attempting to commit the crime intended."
K.S.A. 2014 Supp. 21-5210.

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The language of this law is reflected verbatim in PIK Crim. 4th 52.140 (2016
Supp.), which in turn, the district court incorporated into Instruction No. 9.

Although Pruitt acknowledges Instruction No. 9 "accurately reflected" K.S.A.
2014 Supp. 21-5210(a), he claims it did not correctly provide the requirements of
subsection (b). In particular, he complains that Instruction No. 9 did not state that before
considering whether the crime was reasonably foreseeable, the jury must find that the top
half of the instruction applied, which required it to find Pruitt had the required mental
culpability and intentionally aided another to commit the intended crime. "This is
problematic," Pruitt believes, because "it is not clear whether counts 2, 3, and 6 are
referenced as the reasonably foreseeable crimes or the intended crimes." Thus, according
to Pruitt, "the jury could have convicted [him] under a theory of aiding and abetting for
an intentional killing without ever finding [he] did in fact have the intent to kill."

In a multifaceted response, the State argues that the prosecutor

"explained to the court that the first paragraph of the instruction applied only to count 1
(attempted first degree murder) because it was a specific intent crime that required both
individuals [Pruitt and Webster] to have the same intent to commit the crime. The second
paragraph of the instruction referred to counts 2, 3, and 6."

Second, the State notes that Instruction No. 9 is a mirror image of PIK Crim. 4th
52.140, which combined former PIK Crim. 3d 54.05 and PIK Crim. 3d 54.06. Third, the
State points out that the second paragraph to Instruction No. 9 begins: "The person is
also responsible for any other crime committed in carrying out or attempting to carry out
the intended crime." (Emphasis added.) Thus, the State asserts that the words "also
responsible" immediately following the first paragraph and the phrase: "As to Counts 2,
3, and 6" make it clear that a person liable under the first paragraph for attempting to
murder Simonton (Count 1) was also liable for crimes listed in Counts 2, 3, and 6, if that
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person could reasonably foresee those crimes would occur as a consequence of
committing the intended crime—attempted murder.

Pruitt cites two premeditated murder cases in support of his argument. First, he
cites State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005). In Engelhardt, the
defendant was convicted of first-degree premeditated murder under an aiding and
abetting theory. 280 Kan. at 120. The district court instructed the jurors by giving them
separately PIK Crim. 3d 54.05 (Responsibility for Crimes of Another) and PIK Crim. 3d
54.06 (Responsibility for Crimes of Another—Crime Not Intended). According to our
Supreme Court, the district court believed the two instructions were appropriate because
the victim had been beaten and stabbed by both Engelhardt and his accomplice prior to
the infliction of the "death blows." As a result, the district court surmised, in the context
of aiding and abetting the crime, the murder was reasonably foreseeable. 280 Kan. at 133.

Our Supreme Court found instructional error, however, because by instructing the
jury on PIK Crim. 3d 54.06 in a premeditated murder case, the district court effectively
and erroneously allowed the jury to find Engelhardt guilty of felony murder. 280 Kan. at
133. Of note, our Supreme Court did not reverse Engelhardt's conviction, finding the
instructional error to be harmless. 280 Kan. at 133-34.

As is readily apparent, Engelhardt is not factually on point with the case on
appeal. It does, however, stand for an important proposition:

"The specific intent required to be proved for conviction on a premeditated first-degree
murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of
aiding and abetting a premeditated first-degree murder must be found, beyond a
reasonable doubt, to have had the requisite premeditation to murder the victim." 280 Kan.
at 132.

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This proposition is equally applicable here, where Pruitt was charged with attempted
murder in the first degree but was convicted of the specific intent crime of second-degree
murder. See State v. Littlejohn, 298 Kan. 632, 647, 316 P.3d 136 (2014) ("Second-degree
intentional murder is a specific-intent crime requiring the defendant to have the specific
intent to kill.").

Pruitt also cites State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 (2009). In
Overstreet, our Supreme Court once again considered the propriety of the district court's
reasonable foreseeability instruction in an attempted premeditated first-degree murder
case based on an aiding and abetting theory. In Overstreet, our Supreme Court noted:

"This foreseeability instruction indicated that the jury need not find that Overstreet
possessed the specific intent of premeditation if it found that premeditated murder was a
reasonably foreseeable consequence of aggravated assault. In other words, giving the
aiding and abetting foreseeability instruction negated the State's burden to prove an
essential element of the crime charged: premeditation." 288 Kan. at 11.

Ultimately, the Supreme Court determined that, as written, the jury instruction was
clearly erroneous and remanded the case for new trial. 288 Kan. at 14-15. Of note, in
reversing this conviction our Supreme Court emphasized the prosecutor's closing
argument where he erroneously argued that Overstreet was guilty of aiding and abetting
premeditated murder "'even if this defendant only wanted to aid an aggravated assault.'"
288 Kan. at 14.

In the present case, Pruitt argues that Instruction No. 9 "negated the jury's duty to
find that [he] had the required mental culpability and specific intent to be guilty of
attempted second degree murder." Pruitt also alleges the jury was "likely confused as to
whether . . . counts" 2, 3, and 6 were to be considered in the context of reasonable
foreseeability or aiding and abetting.

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We are persuaded that Pruitt's reliance on Overstreet and Engelhardt is unavailing.
Given the differences in the structure and limiting language of the instructions, trial
evidence, and theories of the prosecution and the defense, we find no clear error.

Importantly, Instruction No. 9 properly informed the jury in the first paragraph
that Pruitt was criminally responsible for aiding and abetting a crime if he had "the
mental culpability" required to commit the crime. With regard to mental culpability,
Instruction No. 11, the instruction setting forth the elements of the crime of attempted
murder in the first degree, specified that the State must prove that Pruitt had the intent to
commit murder in the first degree with premeditation. Similarly, with regard to
Instruction No. 14, setting forth the elements of the lesser included offense of attempted
murder in the second degree, the jury was properly instructed that the State must prove
Pruitt had "the intent to commit Murder in the Second Degree." Thus, a fair reading of
the first paragraph of Instruction No. 9 in conjunction with Instructions Nos. 11 and 14
properly informed the jury of the State's burden to prove that Pruitt, as an aider and
abettor, had the requisite specific intent to murder Simonton.

Unlike the instructions used in Overstreet and Engelhardt, the phrase, "As to
Counts 2, 3, and 6," followed the first paragraph (relating to all counts charged) and
preceded the second paragraph of Instruction No. 9 regarding reasonable foreseeability.
In this way, Instruction No. 9 delineated which counts the State was contending were
reasonably foreseeable—Counts 2, 3, and 6. Under this plain reading, the jury should not
have been confused or misled as to the requirement that Pruitt must have had the specific
intent to murder Simonton if he was to be found guilty of Count 1 or the lesser offense.

In short, the specific language and structure of Instruction No. 9 informed the jury
that only aggravated robbery, aggravated assault, and aggravated battery could be viewed
as reasonably foreseeable crimes and that attempted first- or second-degree murder could
not be regarded as reasonably foreseeable crimes. Especially when read in conjunction
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with the attempted first- and second-degree murder instructions, we conclude it is highly
unlikely that Instruction No. 9 confused the jury and mistakenly caused it to believe that
Pruitt could be convicted of aiding and abetting murder without the requisite specific
intent. See State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014) (when reviewing
jury instructions, Kansas courts review the instructions as a whole without focusing on
any one instruction to determine whether they properly state the applicable law and
whether it is reasonable to conclude they could have misled the jury).

While we conclude that Instruction No. 9 correctly informed the jury of both
principles of criminal liability and the instructional language was not confusing or
misleading, we will also conduct a clear error analysis since both Pruitt and the State
have briefed this aspect of the issue. To find clear error, an appellate court must be firmly
convinced the jury would have reached a different verdict absent the instructional error.
State v. Gleason, 305 Kan. 794, 803, 388 P.3d 101 (2017). This inquiry requires the
reviewing court to consider the complete record on appeal to determine the error's impact.
State v. Cheever, 304 Kan. 866, 886-87, 375 P.3d 979 (2016).

As detailed earlier in the Factual and Procedural Background, the information filed
in this case charged Pruitt as a principal—not as an aider and abettor—in three counts
relevant to this appeal. In particular, Count 1 charged attempted murder in the first degree
on the basis that Pruitt shot Simonton. Count 2 charged attempted aggravated robbery on
the basis that Pruitt pointed a handgun at Simonton and Wolfe and demanded money.
Count 6 charged aggravated battery on the basis that Pruitt caused great bodily harm to
Simonton. In short, the State's theory of prosecution as reflected in the charging
document was that Pruitt acted as a principal who personally committed three of the
violent crimes charged.

At trial, the State's evidence also supported the theory that Pruitt was a principal in
the commission of three of the violent crimes. There was direct and circumstantial
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evidence that Pruitt fired one shot, point blank, from his semiautomatic handgun that
struck Simonton in the left lower abdomen. This evidence supported the theory that Pruitt
was a principal in the attempted murder and aggravated battery of Simonton. There was
also direct and circumstantial evidence of Pruitt's involvement as a principal in the
commission of the attempted robbery. Pruitt was involved in the planning of the robbery.
He used his cellphone to arrange a meeting with Simonton to purportedly sell him
marijuana. Pruitt, accompanied by Webster, displayed and used a deadly weapon in an
effort to rob Simonton. In sum, there was substantial competent evidence to support the
State's theory that Pruitt was a principal in the commission of these crimes.

The State's closing argument also closely tracked the State's theory and evidence
tending to show that Pruitt was a principal actor, not just an aider and abettor. On appeal,
Pruitt concedes: "It is likely the jury could have believed Mr. Pruitt was a principal actor
for all the crimes, except for the aggravated assault charge, as the State argued in its
closing arguments." We agree.

The count for which the reasonable foreseeability instruction was especially
applicable was Count 3 relating to aggravated assault. As alleged by the State, that crime
occurred when Webster personally pointed his revolver at Wolfe's head while he had him
in a headlock. Clearly, Pruitt was not involved as a principal in this criminal conduct.
While Instruction No. 9 did not explain this point, the State provided clarification during
closing arguments when the prosecutor told the jury:

"[A]ggravated assault for a gun to the head. And that's where the aid and abet comes in.
The reasonably foreseeable. Isn't it reasonably foreseeable that Craig Wolfe would be
another victim in that vehicle by Dreamis Webster by putting the gun there? . . . You got
to ask yourself is that reasonably foreseeable. And I submit to you, ladies and gentlemen,
the evidence says it is."

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With this commentary, the prosecutor explained the meaning of the second
paragraph of Instruction No. 9—that given Pruitt and Webster's joint criminal enterprise,
it was reasonably foreseeable that Webster individually would use his handgun to commit
aggravated assault on Wolfe. As a result, the State's closing argument clarified any
confusion that the wording of Instruction No. 9 may have caused the jury. As argued by
the prosecutor, the aiding and abetting and reasonable foreseeability paragraphs in
Instruction No. 9 related specifically to Count 3, the aggravated assault of Wolfe.

Finally, it is noteworthy that Pruitt's defense was not that the State had failed to
show it was reasonably foreseeable that he committed attempted murder or any of the
other violent crimes. Indeed, defense counsel did not mention Instruction No. 9, the
theories of aiding and abetting, or reasonable foreseeability during his closing argument.
Instead, defense counsel argued that Wolfe was armed with a handgun and he and
Simonton attempted to rob Pruitt and Webster during a failed drug transaction.

At the conclusion of his argument, defense counsel stated:

"[Simonton and Wolfe] tried to rob these guys that came in to say they were trying to buy
marijuana off and it went bad. And they're the ones that got the losing end. [Wolfe] is
chasing this first male, and guess what, he fires a shot. That's what that shell casing came
from [sic]."

Pruitt's defense was a complete denial of any involvement, either as a principal or
an aider and abettor, in the violent crimes. In short, Pruitt alleged he was a blameless
victim, not a violent perpetrator. Given this defense generally denying any involvement
with the crimes, Pruitt's objection to the wording of the second paragraph of Instruction
No. 9 relating to the reasonable foreseeability of the commission of other crimes loses
significance.

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In summary, upon our review of the entire record, we are not firmly convinced the
jury would have reached a different verdict absent any claimed instructional error. See
Gleason, 305 Kan. at 803. And, assuming without deciding that Instruction No. 9 was
improperly worded, we find no clear error.

EVIDENTIARY OBJECTION

Pruitt next contends the district court erred when it admitted testimony "that either
Mr. Pruitt or his cousin, Mr. Webster, had shouted the gang reference, 'Blood,' to come
get him or pick him up as he fled the scene of the crime." Pruitt challenges both the
relevance and probative value of this evidence while also claiming it was "extremely
prejudicial, without any probative value." The State counters that this issue was not
preserved for appellate review. Alternatively, as to the merits, the State claims the
statement was admissible because it was spoken as Pruitt and Webster were leaving the
crime scene. Finally, if there was error, the State asserts it was harmless.

Before trial, Pruitt filed a motion in limine requesting that the "State be precluded
from introducing any evidence or eliciting any testimony that relate[d] to gang
involvement by [Pruitt]. [Because] [a]ny mention of this would be highly prejudicial to
[Pruitt], and such prejudice would outweigh any probative value it may have." At the
hearing on this motion, the State explained:

"[W]hile the suspects were running from the scene, our witness [Craig Wolfe] heard them
say, Blood, pick me up. . . . [W]e don't intend to put on evidence that they are
documented Blood gang members, but that [those were] the words Craig Wolfe heard as
the suspects were running from the scene."

Later, the prosecutor reiterated that "it's not the State's intent to make this a gang
case or evidence of that, Judge." The district court granted Pruitt's motion in limine "with
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the exception of the reference to Blood yelled by . . . one of the defendants during the
incident."

At trial, two witnesses gave their renditions of the "Blood, pick me up" statement
mentioned by Wolfe during police interviews. Officer Melissa Burns testified that Wolfe
told her that he heard "one male . . . yell to the other . . . come get me, Blood." Defense
counsel objected, and the district court overruled the objection but allowed a continuing
objection. Detective Steven Molde of the Wichita Police Department also interviewed
Wolfe following the shooting. At trial, Detective Molde testified Wolfe heard Pruitt yell,
"Blood, pick me up," after Webster shot Simonton. Defense counsel did not object to this
statement. Finally, Wolfe testified at trial, over defense objection, that he heard Webster
or Pruitt yell, "Wait for me." Of note, Wolfe did not mention the word, "Blood."

When reviewing the admissibility of evidence, appellate courts follow a two-step
analysis. First, our court must determine whether the evidence is relevant. Usually, all
evidence—including gang affiliation evidence—is admissible if relevant. State v.
Peppers, 294 Kan. 377, 386, 276 P.3d 148 (2012); K.S.A. 60-407(f). Relevant evidence
is defined as evidence that has "'any tendency in reason to prove any material fact.'" State
v. Page, 303 Kan. 548, 550, 363 P.3d 391 (2015) (quoting K.S.A. 60-401[b]). This
definition encompasses two elements: materiality and probativity. Evidence is material
when the fact it supports is disputed and is significant under the substantive law of the
case. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016). This court reviews the
materiality of evidence de novo. Page, 303 Kan. at 550. Evidence is probative if it
"furnishes, establishes, or contributes toward proof." McCormick, 305 Kan. at 47. This
court reviews probativity for abuse of discretion. 305 Kan. at 47.

Even if evidence is relevant, a district court may exclude it if the district court
determines the probative value of the evidence is outweighed by its potential for
18

producing undue prejudice. K.S.A. 60-445. We review this aspect of the test for abuse of
discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).

The State initially responds that Pruitt failed to preserve this issue for appeal
because Pruitt's objections at the pretrial hearing and trial were not sufficiently specific.
Generally, a party must lodge a timely and specific objection to the admission or
exclusion of particular evidence in order to preserve the evidentiary question for appellate
review. State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009); Kansas law further
requires that such an objection be specific and contemporaneous. K.S.A. 60-404.

We have reviewed the record and are persuaded that Pruitt sufficiently informed
the district court prior to and during trial that he objected to any mention of the "Blood"
statement because he claimed it was an inadmissible gang reference.

As to the merits, Pruitt first claims the statement in question was "not material to
any ultimate fact in issue," because it did not "affect witness credibility or bias, nor [did]
it affect motive, intent, or any other material fact." Instead, Pruitt asserts the statement
added nothing to the State's case other than to show that he was "involved in gang
activity."

Recently, our Supreme Court addressed the admissibility of gang evidence in
Peppers, 294 Kan. 377. In particular, the court found that "[f]or evidence of gang
affiliation to be admissible there must be sufficient proof that gang membership or
activity is related to the crime charged." 294 Kan. 377, Syl. ¶ 2. Moreover, our Supreme
Court indicated that generally res gestae evidence related to gangs is admissible "even if
it concerns the events surrounding commission of a crime." 294 Kan. 377, Syl. ¶ 4. See
State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006); State v. Tran, 252 Kan. 494,
504, 847 P.2d 680 (1993).

19

The State persuasively reasons the "statement made by one of the suspects to the
other as they were running away was relevant to show that they were working in concert
and leaving the scene of the crime together." Given that the State presented evidence that
Pruitt was acting either as a principal or aider and abettor, this brief remark made by
either Pruitt or Webster was relevant to show that Webster and Pruitt were working in
concert during the commission of the charged crimes and their escape from the crime
scene.

Moreover, we fail to discern any prejudice. There was no evidence that the
"Blood" reference related to any gang association or that Pruitt or Webster were members
of any gang. Assuming the jury made such an association, the impact of this evidence
would have been mitigated because Wolfe never personally testified at trial to any
"Blood" reference when recounting the statement made about the events of March 6,
2015. We conclude the challenged statement was admissible and not overly prejudicial.
See K.S.A. 60-445.

Finally, assuming the admission of the "Blood" reference was error, we conclude
it was harmless. As detailed in the Factual and Procedural Background, there was
considerable direct and circumstantial evidence of Pruitt's involvement in the commission
of these crimes. The significance of the challenged evidence pales in comparison to the
substantial incriminating evidence of Pruitt's guilt. In this regard, the State has shown
beyond a reasonable doubt that any error did not affect the outcome of the trial in light of
the entire record. See State v. Santos-Vega, 299 Kan. 11, 24, 321 P.3d 1 (2014).

MODIFICATION OF JAIL TIME CREDIT

Next, Pruitt contends the district court's journal entry of judgment indicating that
he had earned no jail time credit was erroneous because the court lacked jurisdiction to
modify the 312 days of jail time credit previously awarded him at sentencing. Pruitt also
20

complains that the restitution award in the district court's journal entry of judgment is
inconsistent with the court's oral restitution ruling made at the time of sentencing. As a
result, with regard to both complaints, Pruitt asks our court to "remand to the district
court for correction of the journal entry 'reflecting the oral sentence of the court.'" We
will separately consider these two matters.

Pruitt's presentence investigation (PSI) report revealed that he was on probation
for a juvenile adjudication of aggravated battery when Simonton was shot. Pruitt was
taken into custody on April 30, 2015, and remained in jail until the sentencing date for
this case on June 24, 2016—a total of 422 days. At the sentencing hearing, the State
discussed the effects of Pruitt's juvenile sentence on his criminal sentence:

"[T]he Court should know, that even though [Pruitt] has a three-year [juvenile]
sentence . . . the case law says that we cannot run this consecutive to a juvenile case. And
then, quite frankly, once you impose [a] sentence here, [the State has] an obligation to
terminate that [juvenile] sentence. And so, basically, he is getting a three-year pass on a
juvenile shooting, because he is going to get all that credit in this particular case because
we can't run them consecutive."

The district judge pronounced Pruitt's sentence and further ruled: "I will run those
counts consecutive to each other and consecutive pursuant to operation of law to any
other outstanding case or cases . . . allowed by our current law." The district judge then
proceeded to the matter of jail time credit:

"[THE COURT]: You will receive credit for jail time that you have been in jail
on this case for up to this point in time.
"Do you have a computation of that, Mr. Muth [the prosecutor]?
"MR. MUTH: I do, Judge. As I indicated, he was being held on his juvenile case
as well. But since it by operation of law will run concurrent to that, he has 312 days of
credit.
21

"THE COURT: You will receive 312 days of jail credit, up until today's date.
From today forward, you will technically be in the custody of the Secretary of
Corrections. You will be eligible for up to a 15 percent reduction of your sentence for
good time."

Following the sentencing hearing, the State filed the journal entry of judgment. In
the "Incarceration Credit" portion of the journal entry, the State noted that Pruitt had
spent 422 days in custody prior to sentencing, but it listed the amount of jail time credit
as zero. The journal entry explained: "For dates above not awarded, defendant was being
held on [this case] and serving a sentence [for the juvenile case]. As this case is
consecutive to any other cases which the law permits, then defendant is not eligible for
duplicate credit for these dates."

Upon the filing of the journal entry, Pruitt filed a motion for jail time credit with
the district court in which he argued that "it was [his] understanding that because he
would ultimately be discharged on the juvenile case, he would be given credit for all the
time he had served until that time on this case." The district court held a hearing on the
matter. The district judge denied Pruitt's motion, reasoning: "It sounds to me like this is a
request for duplicative credit under these . . . circumstances, and I don't think he is
entitled to it."

On appeal, the parties offer divergent views on the exact nature of the issue before
our court on appeal. Pruitt contends the district court lacked jurisdiction to adjust his jail
time credit after the sentencing hearing. Pruitt does not address whether, assuming there
was jurisdiction, the district court's ruling was correct. The State, on the other hand, does
not dwell on the jurisdictional issue, but it assures us that Pruitt was legally not entitled to
any jail time credit. Since this is Pruitt's appeal, we will only address the jurisdictional
issue that he has raised.

22

Whether the district court could legally order a postsentence modification of
Pruitt's jail time credit is a question of law over which this court exercises unlimited
review. See Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015).

Under Kansas law, jail time credit must be determined by the district court and
stated in the journal entry at the time of sentencing. State v. Theis, 262 Kan. 4, 7, 936
P.2d 710 (1997); State v. Edwards, No. 109,685, 2014 WL 1612500, at *3 (Kan. App.
2014) (unpublished opinion). Generally, a defendant confined pending his or her
conviction and sentencing may receive credit for time served in confinement. K.S.A.
2017 Supp. 21-6615(a). But Kansas courts have held that jail time credit is earned only
for the time spent in jail solely on account of the offenses for which the defendant is
being sentenced. See State v. Lofton, 272 Kan. 216, 217-18, 32 P.3d 711 (2001). In other
words, a defendant may not receive duplicate jail time credit. State v. Evans, No.
105,185, 2011 WL 3444348, at *2-3 (Kan. App. 2011) (unpublished opinion).

The crux of Pruitt's argument is that the district court's award of 312 days of jail
time credit was a part of his sentence imposed at the time of the sentencing hearing, and
"[b]ecause the sentencing pronouncement controls, Mr. Pruitt argues that any subsequent
decision of the district court changing that decision was ineffective for lack of
jurisdiction."

We agree with Pruitt that "[o]nce a legal sentence has been pronounced from the
bench, the sentencing court loses subject matter jurisdiction to modify that sentence
except to correct arithmetic or clerical errors." State v. Hall, 298 Kan. 978, 983, 319 P.3d
506 (2014). We disagree, however, that the district court's postsentencing modification of
jail time credit is a modification of Pruitt's sentence for which the district court had no
jurisdiction.

23

Our court has previously rejected Pruitt's argument. In State v. Smith, 33 Kan.
App. 2d 554, 555, 105 P.3d 738 (2005), the district court made an oral ruling at
sentencing that Smith was entitled to 92 days of jail time credit. After the State
commented that this award would give Smith double credit, the district court modified its
ruling and gave Smith only 28 days of jail credit. Smith objected and, on appeal, argued
"the trial court was without jurisdiction to modify his sentence by subtracting jail-time
credit the court had imposed a lawful sentence." 33 Kan. App. 2d at 555.

Our court rejected Smith's argument and found that the district court could modify
the jail time credit award at any time because "the original sentence did not change." 33
Kan. App. 2d at 557. Other panels of this court have adopted this same logic and holding.
See Evans, 2011 WL 3444348, at *3 ("[T]he action taken by the [district] court after
sentencing was permissible because Evans' sentence remained at 16 months despite the
court's [modification of Evans' jail-time credit]."). See also State v. Cockerham, 266 Kan.
981, 985, 975 P.2d 1204 (1999) (granting a defendant more jail time credit does not
modify sentence).

Applying this precedent, we are persuaded that the district court had jurisdiction to
modify Pruitt's jail time credit after sentencing. Although the district court orally
pronounced that Pruitt was entitled to 312 days of jail time credit at sentencing, afterward
it determined it had erred and modified the award to zero days. Since a modification of
jail time credit is not an impermissible modification of a sentence, the district court had
subject matter jurisdiction to modify its prior jail time credit ruling. We find no error.

Pruitt also complains that, although the district court found that he should not pay
restitution, the journal entry of judgment reflected a restitution order of $8,822.81. The
State acknowledges the original journal entry was incorrect, but it notes that an amended
journal entry was filed on June 26, 2017, that corrected this mistake. We conclude this
particular issue is moot. See State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014)
24

(an issue is moot if "'it is clearly and convincingly shown the actual controversy has
ended, the only judgment that could be entered would be ineffectual for any purpose, and
it would not impact any of the parties' rights.' [Citations omitted.]").

USE OF CRIMINAL HISTORY TO ENHANCE SENTENCE

Finally, Pruitt contends the district court violated his due process rights as
articulated in Apprendi, 530 U.S. at 477, 490, when it enhanced his sentence based upon
his criminal history without first requiring the State to include his prior convictions in its
complaint and to prove those convictions to a jury beyond a reasonable doubt. The
Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 46-48,
41 P.3d 781 (2002). Since then, it has reaffirmed Ivory on multiple occasions. See State v.
Williams, 299 Kan. 911, 941, 329 P.3d 400 (2014); State v. Baker, 297 Kan. 482, 485,
301 P.3d 706 (2013).

This court is required to follow Supreme Court precedent absent some indication
that the court is departing from its earlier position. State v. Belone, 51 Kan. App. 2d 179,
211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We know of no indication that our
Supreme Court is departing from its holding in Ivory. Accordingly, we conclude that the
district court did not violate Pruitt's constitutional due process rights when it considered
his criminal history as part of its sentencing determination.

Affirmed.