State v. Turner

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NOT DESIGNATED FOR PUBLICATION

No. 112,547

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JD TURNER,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; MICHAEL J. MALONE, judge. Opinion filed October 23,
2015. Affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., SCHROEDER, J., and HEBERT, S.J.

Per Curiam: JD Turner appeals his convictions for attempted first-degree murder,
criminal possession of a firearm by a convicted felon, aggravated assault, and domestic
battery. On appeal, Turner claims the district court erred by not using his modified
version of PIK Crim. 4th 63.040 instruction on criminal possession of a firearm by a
convicted felon. We find Turner's stipulations and proposed instruction were inadequate
to accurately instruct the jury for criminal possession of a firearm by a convicted felon.
Turner also asserts the district court improperly found the victim, R.W., unavailable as a
witness and erred by allowing her preliminary hearing testimony to be read to the jury.
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We find no error by the district court on this point. Turner challenges those sentences
where the district court imposed the high number in the grid block. On this issue, we
have no jurisdiction on appeal. See State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207
(2008). Finally, Turner disputes the use of his prior criminal history to determine his
sentence. This argument has been repeatedly denied based on our Supreme Court's
decision in State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002). Turner's multiple
claims for relief are denied, and we affirm his convictions.

FACTS

On February 28, 2014, the State charged Turner with one count each of attempted
first-degree murder, criminal possession of a firearm by a convicted felon, aggravated
assault, and domestic battery from a series of incidents occurring on February 13 and 14,
2014.

Turner filed a motion to bifurcate, asking that the criminal possession of a firearm
by a convicted felon charge be tried at a different time than the other charges or, in the
alternative, for the district court to agree to instruct the jury using his modified version of
PIK Crim 4th 63.040. Turner's proposed jury instruction removed all references to the
convicted felon element. Instead, it said Turner "has stipulated that he was prohibited by
law from possession of a firearm at the time alleged and this element of the charge is
admitted and does not need to be considered by the jury." The district court denied
Turner's motion to bifurcate and declined to use Turner's proposed instruction.

Five days before trial, the State filed a motion to declare R.W. an unavailable
witness. R.W., the victim of the aggravated assault and domestic battery charges, testified
at Turner's preliminary hearing but the State was unable to locate and serve her for the
trial. At the motion hearing, Turner argued the subpoena for R.W. issued by the district
attorney's office was improperly issued because it was not issued by the clerk of the
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court. The district court found the subpoena's validity was a "red herring" because R.W.
had not been located or served and the State had exercised good faith and diligence in
attempting to locate her. The district court allowed the presentation of R.W.'s preliminary
hearing testimony at trial.

The jury found Turner guilty of attempted first-degree murder, criminal possession
of a firearm by a convicted felon, aggravated assault, and domestic battery. Turner
received a 285-month sentence for attempted first-degree murder with a consecutive 12-
month sentence for aggravated assault. Turner also received concurrent sentences of 9
months for criminal possession of a firearm by a convicted felon and 6 months for
misdemeanor domestic battery to the charges of attempted first-degree murder and
aggravated assault. The district court also imposed a period of postrelease supervision on
all convictions other than domestic battery. Turner timely appeals.

ANALYSIS

The district court properly instructed the jury on the charge of criminal possession of a
firearm by a convicted felon.

For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are:

"'(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, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
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denied 132 S. Ct. 1594 (2012).' State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202
(2012)." State v. Smyser, 297 Kan. 199, 203-04, 299 P.3d 309 (2013).

The State argues that Turner withdrew his proposed criminal possession of a
firearm by a convicted felon jury instruction at the instruction conference. However,
during the conference, Turner reiterated his request for the proposed instruction. Turner
did not withdraw his proposed jury instruction, and he has preserved the issue for
appellate review.

The defendant's status as a convicted felon is one of the elements of criminal
possession of a firearm by a convicted felon. See K.S.A. 2014 Supp. 21-6304. The State
has the duty to establish each of the elements of the crime charged. State v. Lee, 266 Kan.
804, 815, 977 P.2d 263 (1999). However, in a criminal possession of a firearm case, if the
defendant requests a stipulation acknowledging the defendant's status as a prior convicted
felon, the defendant's stipulation satisfies the State's burden of proof for that element of
the crime and the district court must approve the stipulation. After the defendant
stipulates to convicted felon status, the judge may instruct the jury that the defendant's
status as a convicted felon was proven by the stipulation. 266 Kan. at 816.

In Lee, the district court denied Lee's offer to stipulate that he was a convicted
felon and allowed the State to introduce evidence of the prior felony, including a certified
copy of the journal entry of judgment of the aggravated battery conviction, to the jury.
The Kansas Supreme Court held that Lee's stipulation had to be accepted. As a result,
Lee's status as a convicted felon could be acknowledged, but the facts surrounding his
prior felony conviction could not be further elaborated by the State. The Kansas Supreme
Court held that neither the number nor the nature of the Lee's prior convictions could be
disclosed to the jury. 266 Kan. at 815-16.

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In State v. Mitchell, 285 Kan. 1070, 1073, 179 P.3d 394 (2008), the State filed an
interlocutory appeal challenging the district court's order requiring the State to accept
Mitchell's stipulation that he "'was adjudicated a juvenile offender in Wyandotte County
District Court on April 2004, and that his adjudication prohibited him from owning and
possessing a firearm on January 8, 2005.'" In Mitchell, the State argued that Lee was
distinguishable or should be overturned. The Kansas Supreme Court affirmed Lee and
found that the district court's order complied with Lee because it established Mitchell's
status without disclosing the number and nature of Mitchell's prior convictions to the
jury. Mitchell, 285 Kan. at 1079-80.

Turner's modified version of PIK Crim. 4th 63.040 submitted to the district court
provided:

"The defendant is charged with criminal possession of a firearm. The defendant
pleads not guilty. To establish this charge, each of the following must be proved:
1. The defendant possessed a firearm.
2. The defendant has stipulated that he was prohibited by law from possession of
a firearm at the time alleged and this element of the charge is admitted and does not need
to be considered by the jury.
3. This act occurred on or about the [14th day of February, 2014], in Douglas
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."

The instruction given to the jury by the district court followed the recommended
PIK 4th 63.040 instruction for the criminal possession of a firearm by a convicted felon
as follows:

"The defendant is charged with criminal possession of a firearm by a convicted
felon. The defendant pleads not guilty.
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"To establish this charge, each of the following claims must be proved:
"1. The defendant possessed a firearm.
"2. The defendant within 10 years preceding such possession has been convicted
of a felony.
"3. The defendant was not found to be in possession of a firearm at the time of
the prior crime.
"4. This act occurred on or about the 14th day of February, 2014, in Douglas
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." (Emphasis added.)

Turner's proposed jury instruction excised all references to the convicted felon
element and exceeds the holdings of Lee and Mitchell. Unlike in Lee and Mitchell,
Turner's proposed instruction sought not only to prevent the State from introducing
evidence of Turner's prior conviction, but to also completely prevent the State from
acknowledging Turner's status as a convicted felon. The district court did not err when it
refused to give Turner's proposed instruction because the State was required to prove
Turner's prior felony conviction as an element of the crime. Turner's proposed instruction
was legally insufficient to properly instruct the jury on the elements the State was
required to prove to support a conviction for criminal possession of a firearm. The district
court did not err in denying Turner's request to instruct the jury using his modified
instruction of PIK Crim. 4th 63.040.

R.W. was unavailable as a witness.

The district court found the State had exercised due diligence and good faith in
trying to obtain R.W.'s presence at the jury trial. A district court's determination of
witness unavailability will not be disturbed on appeal unless an abuse of discretion is
shown. State v. Zamora, 263 Kan. 340, 342, 949 P.2d 621 (1997). A district court abuses
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its discretion if its judicial action is arbitrary, fanciful, or unreasonable; is based on an
error of law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253
(2014).

Preliminary hearing testimony of an unavailable witness may be used at trial if the
adverse party had the right and opportunity to cross-examine the witness at the
preliminary hearing under K.S.A. 2014 Supp. 60-460(c)(2). Before a witness can be
declared unavailable, the proponent must show the witness cannot be produced at trial
through the exercise of due diligence and good faith. State v. Plunkett, 261 Kan. 1024,
1034, 934 P.2d 113 (1997). The Kansas Supreme Court has not attempted to define "due
diligence." State v. Cook, 259 Kan. 370, 376, 913 P.2d 97 (1996). The question of
whether the proponent made a good-faith effort to locate the witness turns on the totality
of the facts and circumstances. State v. Flournoy, 272 Kan. 784, 800, 36 P.3d 273 (2001).

Turner argues the State did not exercise due diligence and good faith because the
subpoena for R.W. was issued by the district attorney's office instead of the clerk of the
court. However, whether the State's subpoena was properly issued is not determinative of
R.W.'s unavailability. K.S.A. 60-459(g)(5) provides: "'Unavailable as a witness' includes
situations where the witness is absent from the place of hearing because the proponent of
his or her statement does not know and with diligence has been unable to ascertain his or
her whereabouts."

By its plain language, K.S.A. 60-459(g)(5) does not include language requiring the
issuance of a subpoena before a witness is declared unavailable. In addition, the Kansas
Supreme Court has affirmed district court findings of witness unavailability despite a
party's failure to subpoena the unavailable witness. See Cook, 259 Kan. at 376-83; State
v. Bey, 217 Kan. 251, 254-56, 535 P.2d 881 (1975).

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In Cook, the defendant was charged with murder, and the key witness, David
Rudell, left the state for safety. Rudell returned for the preliminary hearing and was
questioned by counsel for the defendant. Despite living in California, Rudell made
himself available as needed and the State kept in contact with Rudell through his
attorney. A week before trial, Rudell informed the State that he did not have the funds
necessary to travel back to Kansas and would not be present unless the State provided
travel money up front. The State sent Rudell travel money, but Rudell never received the
money and was not present at trial. The district court found Rudell was unavailable and
his preliminary hearing transcript was read into the record at the defendant's trial. On
appeal, Cook argued the State did not satisfy its due diligence because it did not issue
compulsory process to seek Rudell's presence at the trial. Despite the State's failure to
issue a subpoena, the Kansas Supreme Court found no error in the district court's finding
the witness was unavailable. Cook, 259 Kan. at 383.

The Kansas Supreme Court also affirmed a district court's finding of witness
unavailability in Bey. Bey was tried for robbery and first-degree murder. At trial, the
State moved to declare Bobby Arnold an unavailable witness. After multiple attempts to
contact Arnold, the State learned he had moved to Fair Play, Missouri. Though a
subpoena was not issued, the sheriff's office in Fair Play made several attempts to contact
Arnold at his residence over a 5-day period and left a note asking Arnold to contact the
Wyandotte County District Attorney's Office. The Kansas Supreme Court found the State
had diligently sought to ascertain Arnold's whereabouts and agreed with the trial court's
conclusion that the issuance of a subpoena would have been a useless act since the
sheriff's office had been unable to make contact with Arnold. 217 Kan. at 255.

Here, the State provided ample evidence of its diligent and good-faith attempts to
locate R.W. for trial. Catherine Born, an investigator with the Douglas County District
Attorney's Office testified she tried contacting R.W. by phone three times between June 2
and 11, 2014. Born testified she attempted to make contact with R.W. at her residence
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four times between June 2 and 19, 2014, and even surveilled R.W.'s residence for nearly
4 hours on June 19, 2014. Born also testified she attempted to contact R.W.'s sister and
mother to locate R.W. and drove by R.W.'s residence 15 times between June 2 and 19,
2014. Similarly, Jack Cross, a detective with the Lawrence Police Department, testified
about his attempts to contact R.W. Cross testified he made multiple attempts to make
contact with R.W. by phone and at her residence. Cross also testified he contacted R.W.'s
mother but was unable to locate R.W. Turner does not dispute the State diligently
attempted to locate R.W. Given the level of attempts to find R.W., the district court did
not abuse its discretion in allowing R.W.'s preliminary hearing testimony to be read based
on the district court's determination she was an unavailable witness given the due
diligence and good-faith efforts expended by the State to secure her attendance at the
trial.

We have no jurisdiction regarding the imposition of a presumptive sentence.

Turner's claims the district court erred by imposing the high range from his
presumptive sentencing grid block at the time of sentencing.

"The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.,
defines [a defendant]'s right to appeal from his sentences and, as applicable to this issue,
provides that 'the appellate court shall not review: (1) Any sentence that is within the
presumptive sentence for the crime.' K.S.A 21-4721(c)(1). KSGA defines 'presumptive
sentence' as 'the sentence provided in a grid block for an offender classified in that grid
block by the combined effect of the crime severity ranking of the current crime of
conviction and the offender's criminal history.' K.S.A. 21-4703(q)." Johnson, 286 Kan. at
841.

See K.S.A. 2014 Supp. 21-6820(c)(1).

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The Kansas Supreme Court has not indicated it is departing from its
holding in Johnson, and Turner acknowledges that Johnson is controlling but asks
us to not follow the rule in Johnson. Absent a clear indication that our Supreme
Court is departing from its previous position, the Court of Appeals is duty bound
to follow Kansas Supreme Court precedent. State v. Ottinger, 46 Kan. App. 2d
647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district
court did not violate Turner's constitutional rights when it sentenced him to the
presumptive upper term of the grid block given his crimes of conviction and
criminal history.

Use of prior convictions to establish Turner's criminal history score was proper.

Turner next argues the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution when it used his prior
convictions to enhance his sentence without proving those convictions to a jury beyond a
reasonable doubt, contrary to the United States Supreme Court's guidance in Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Turner
recognizes the Kansas Supreme Court rejected this argument in Ivory, 273 Kan. at 45-48,
but includes the issue to preserve it for federal review. Because there is no indication the
Kansas Supreme Court is departing from this position, this court is duty bound to follow
established precedent. Ottinger, 46 Kan. App. 2d at 655. The district court properly used
Turner's criminal history to establish his sentence.

Affirmed.