State v. Walker

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NOT DESIGNATED FOR PUBLICATION

No. 119,349

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PIERRE P. WALKER,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed November 27,
2019. Affirmed in part and dismissed in part.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: After a jury trial, Pierre P. Walker was found guilty of three counts
of aggravated robbery and one count of cruelty to animals. Walker appeals, arguing that
he should have a new trial because of improper comments by the prosecutor during
closing arguments, erroneous admission of Facebook pages into evidence by the district
court, and because the Kansas Offender Registration Act (KORA) was applied to him in
an unconstitutional manner. Finding no merit to Walker's claims on the first and third
issues, we affirm as to those. We dismiss his evidentiary claim as not properly preserved
for appeal.
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FACTS

After two jury trials that resulted in deadlocked juries, Walker was convicted of
three counts of aggravated robbery and one count of cruelty to animals at a third jury trial
in January 2018.

Walker's convictions stem from a series of robberies that took place in Lawrence
during the early morning, predawn hours of June 6, 2016. The first victim, Ben Foley,
was walking past a grocery store on his way to his job when a vehicle stopped abruptly
behind him and three men leapt out. While one man held a shotgun on Foley, the others
went through Foley's pockets and backpack. The men took Foley's driver's license, debit
card, bus pass, keys, and cellphone and then drove away through a parking lot.

The next incident occurred shortly after the first. While Verdell Taylor was out for
his usual morning walk by a park in his neighborhood, he noticed a vehicle in a nearby
parking lot. He saw the vehicle exit the lot and drive straight to him. Three men then
jumped out. One man held a sawed-off shotgun on Taylor while the other two men
approached Taylor. Taylor turned to run but fell forward on the ground. One of the men
straddled him and went through his pockets, finding and taking his cellphone.

The third event occurred around the same time at another local park. Jonathan
Schuster was walking his dog, Phoebe, when he heard a vehicle stop right behind him on
the road. Two men jumped out. One demanded Schuster turn over his iPod, while the
other pointed what looked like a shotgun at Phoebe. Schuster lost the struggle to keep his
iPod and heard a loud noise. He turned to look at Phoebe, who was whimpering. Schuster
ran to his nearby apartment to get his car so he could take Phoebe to the veterinarian. But
by the time he returned, Phoebe had died of a gunshot wound and the police had arrived
on the scene.

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The three victims similarly described the vehicle and the assailants. Foley recalled
that the vehicle was a tan-colored sport utility vehicle with a luggage rack. The men had
dark skin, and the one with the shotgun had dark hands, was approximately 6 feet tall,
and wore a red baseball cap. Taylor also said the vehicle was an SUV, and described it as
a darker color such as gray, green, or blue. He described the person with the gun as a
slender man of color, standing between 5'10" and 6'1". The other two men were also of
color but shorter. Taylor remembered the gunman's eyes and was later able to identify
Walker from a photograph in the local newspaper because of his distinctive eyes.
Schuster described the vehicle as a small, neutral-colored SUV, and the men as African-
American. Schuster described the man who took his iPod as slender, having a moustache,
standing approximately 5'10" or 5'11", and wearing a baseball cap.

Law enforcement officers used a feature on Taylor's cellphone to track it to a
residence in Kansas City, Kansas. Kansas City officers saw a small, light green SUV at
the location. The officers discovered a shotgun shell inside the SUV. The shell was
similar to the one found near Phoebe.

Further investigation of the SUV revealed that the owner was Milton Owens. He
had reported the SUV as stolen on May 24, 2016, approximately two weeks before the
robberies in Lawrence. Owens had allowed another man, Charles Burke, to drive his
SUV. Burke reported that a known acquaintance, Walker, and two other men had robbed
him with two guns, one of which was a shotgun. Burke testified that it was Walker who
had the shotgun.

Officers obtained and executed a search warrant on Walker's Kansas City address.
There they found Foley's driver's license, debit card, and bus pass in the same bedroom as
they found several of Walker's personal papers, including his birth certificate and a
current lease for the premises with his name on it. Investigators also found a sawed-off
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shotgun behind a sectional couch, a variety of shotgun shells, a red and black baseball
cap, and other papers that indicated Walker lived at the address.

In July 2016, the State charged Walker with three counts of aggravated robbery—
a severity level 3 person felony—and one count of cruelty to animals—a nongrid,
nonperson felony.

Walker's first two jury trials ended with hung juries. At his third trial, in January
2018, the jury saw numerous exhibits admitted into evidence, and heard testimony from
all three Douglas County victims, other witnesses such as the SUV owner, Owens, and
his friend, Burke, and numerous law enforcement officers regarding the investigation.

Taylor identified Walker as the man who "pointed the shotgun at [his] face." Law
enforcement officers and a veterinarian identified Phoebe's wounds and pellets found in
her wounds as consistent with a shotgun blast and shell fragments. Law enforcement
testimony also established that the shotgun found in Walker's home fired the shell
recovered near the dog's body. The district court also admitted into evidence photographs
presented by the State of an SUV—consistent with the one the victims described—
driving in the time period of the robberies through intersections in Lawrence, in the
parking lot of the grocery store where Foley was robbed, and near the park where Taylor
was robbed.

Also admitted into evidence at the State's request was a series of Facebook
messages dated from May 27, 2016, to June 9, 2016. These messages indicated that a
Pierre Walker wanted to sell a shotgun and also to obtain shotgun shells. In the hours
leading up to the robberies, other messages showed this Pierre Walker making plans to
collect some friends. Then, messages from after the robberies revealed that this same
Pierre Walker still had a shotgun he wanted to sell.

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Investigating officers testified that fingerprint and DNA analyses in the case were
largely inconclusive. To illustrate, latent fingerprints found on key pieces of evidence
such as Foley's recovered possessions and shotgun shells—both spent and intact—did not
have sufficient characteristics for conclusive comparisons. Similarly, DNA swabs from
the shotgun, its shells, the red and black baseball cap, and the bag containing Foley's
driving license were all inconclusive. Fingerprints taken from a flyer about tax assistance
found in a bag in Walker's bedroom—the same bag in which Foley's license was
discovered—and from inside the SUV were the only useable prints collected and they did
not match Walker's prints. Walker was excluded as the source of the print on the piece of
paper.

After deliberations, the jury found Walker guilty of all three counts of aggravated
robbery and the one count of cruelty to animals. The district court sentenced Walker to
consecutive sentences for the aggravated robbery convictions and a concurrent sentence
for his animal cruelty conviction, for a controlling prison sentence of 204 months, plus
restitution and postrelease supervision. The district court noted that Walker committed
his crimes with a deadly weapon—a firearm. Accordingly, the court ordered Walker to
register as a violent offender for 15 years.

Walker timely appealed from his convictions and sentences, and requests a new
trial.

ANALYSIS

Allegations of prosecutorial error

On appeal, Walker first claims the State committed prosecutorial error by
misstating the evidence and shifting the burden to him during closing arguments. He
argues we should reverse his convictions and remand his case for a new trial. The State
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argues that it did not commit prosecutorial error and Walker's convictions should be
affirmed.

In State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), the Kansas Supreme
Court revamped the concept of and standard of review for "prosecutorial misconduct." In
the context of whether a criminal conviction is reversible due to the inappropriate actions
of a prosecutor during trial, the nomenclature has been changed to "prosecutorial error."
305 Kan. at 93. Under the Sherman standard, an appellate court uses a two-step process
to evaluate claims of prosecutorial error, simply described as error and prejudice.

"To determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' We continue to
acknowledge that the statutory harmlessness test also applies to prosecutorial error, but
when 'analyzing both constitutional and nonconstitutional error, an appellate court need
only address the higher standard of constitutional error.' [Citations omitted.]" Sherman,
305 Kan. at 109.

Even if a prosecutor's actions are egregious, reversal of a criminal conviction is not an
appropriate sanction if the actions are determined to satisfy the constitutional harmless
test. See 305 Kan. at 114.

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As an initial matter, Walker acknowledges he did not object to the State's
comments in its closing argument but accurately notes that a contemporaneous objection
was not required to preserve this issue for appeal. A claim of prosecutorial error based on
comments made during voir dire, opening statements, or closing argument will be
reviewed on appeal even when a contemporaneous objection was not made at the trial
level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012); see State v. McBride,
307 Kan. 60, 64-65, 405 P.3d 1196 (2017) (statements during closing argument).

On appeal, Walker argues the State committed prosecutorial error when it
misstated the results of forensic testing by arguing in closing that the testing did not
exclude him as a suspect. Walker also claims that this misrepresentation shifted the
burden to him to establish he was not a suspect.

Although not regarding forensic evidence, Walker first challenges the State's
comments in closing about the residence where key pieces of evidence such as the gun
and Foley's license were found. He claims that the State's summary of that evidence—
using phrases such as "'no other evidence that [he] lives anywhere [else],'" and "'[t]he
only evidence you heard in this case is that the house on 4th Street is where [he] lived.
You have not heard any evidence to the contrary'"—shifted the burden to him to establish
another person possessed the evidence and to affirmatively establish his address
elsewhere.

Walker then addressed his claim that the State misstated the results of forensic
testing and specifically and exclusively raised as offensive this passage in the State's
closing argument:

"Now, the State presented lots of bits of evidence of DNA testing and latent print
examinations, and most of those tests were inconclusive. There was nothing there that
definitely pointed to [Walker] as owning that shotgun or touching those cards, but think
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about this. Nothing excluded him. Nothing showed anybody else had those things."
(Emphases added.)

He argues this passage is contrary to the evidence presented at trial because a latent print
on a tax assistance flyer—a "piece of paper"—excluded Walker as the source of that
print.

In evaluating a prosecutor's closing arguments, context matters. "Appellate courts
consider the prosecutor's comments in the context in which they were made rather than in
isolation." State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018). A prosecutor's
attempt to shift the burden to the defendant is improper. State v. Stove, 291 Kan. 13, 18,
237 P.3d 1229 (2010). A prosecutor also cannot suggest that a defendant must disprove
the State's case. State v. Williams, 299 Kan. 911, 939, 329 P.3d 400 (2014). Likewise, it
is improper for a prosecutor to argue facts that are not in evidence. State v. Ly, 277 Kan.
386, Syl. ¶ 4, 85 P.3d 1200 (2004). However, identifying a lack of evidence supporting a
defense theory or countering a defendant's argument about problems with the State's case
is not burden-shifting. State v. Haygood, 308 Kan. 1387, 1401, 430 P.3d 11 (2018).
Further, the State is granted "'considerable latitude . . . to comment on the weaknesses of
the defense.'" State v. Blansett, 309 Kan. 401, 414, 435 P.3d 1136 (2019).

Jurors are presumed to follow the instructions provided by the district court. State
v. Rogers, 276 Kan. 497, 503, 78 P.3d 793 (2003). And, when a jury is properly
instructed on the burden of proof, a prosecutor is permitted to argue inferences based on
"the balance or lack of evidence." State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234
(2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317
(2006). Walker does not claim that the jury failed in its duty to follow instructions or that
the jury instruction on the State's burden of proof was improper. Issues not adequately
briefed are deemed waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d
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787 (2018). Likewise, a point raised incidentally in a brief and not argued therein is also
deemed abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015).

Again, a prosecutor's statements during closing arguments must be placed in
context. They may summarize conclusions to which an assessment of the evidence could
lead the jury. Stone, 291 Kan. at 20. In context, then, the State's comments in this case at
closing summarized the evidence presented at the trial that supported Walker living at the
residence. This evidence included a current lease in Walker's name—executed only a few
months before the robberies—found in his bedroom along with his birth certificate. The
State encouraged the jury to make inferences based on the evidence that Walker lived in
this residence where law enforcement searched and located the items connected to the
robberies. This invitation to make inferences based on the evidence of record did not shift
the burden to Walker.

Additionally, the latent fingerprint was found on a piece of paper seemingly
unrelated to the robberies. Walker was excluded as the contributor of this print; however,
the State was not commenting in its closing on the piece of paper. Again, the State
accurately said that most of the forensic testing was inconclusive, but also stated that
none of the testing "definitively pointed to [Walker] as owning that shotgun or touching
those cards, but . . . [n]othing showed anybody else had those things." (Emphases added.)
Forensic testing did not exclude Walker from the shotgun or the cards related to the
robberies. The State's point was that there was no forensic evidence linking Walker to or
excluding him from the items of evidentiary value located in his residence. The State
addressed a weakness in its case—the lack of direct or definitive forensic evidence—but
also noted weaknesses in the defense and invited the jury to make inferences based on the
evidence before it. This was not burden-shifting or a misstatement of the evidence.

Applying the above principles to the State's allegedly offending comments
supports the conclusion that those comments did not fall outside the wide latitude of fair
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argument afforded to prosecutors. The State did not shift the burden to Walker or
misstate the evidence.

However, even if we were to conclude that the State's closing comments
constituted error in some way, we would then need to proceed to the second step of the
Sherman analysis—prejudice. See 305 Kan. at 109.

As noted above, Sherman instructs that our bottom line inquiry is whether the
prosecutorial error was so grave that it prejudiced Walker's due process rights to a fair
trial. And in doing so we are admonished that an error can be considered nonprejudicial
only if it "did not affect the outcome of the trial in light of the entire record." (Emphasis
added.) 305 Kan. at 109. In other words, only if there is no reasonable possibility that the
error contributed to the verdict can we conclude that the error was harmless.

After carefully reviewing the record of Walker's third jury trial we are convinced
that any prosecutorial error was de minimus and had no possibility of altering the verdict.
Evidence at the trial which supports this conclusion include: the consistency and clarity
of the testimony by all three victims in describing the SUV and the physical features of
the perpetrators; the series of photographs placing the SUV, later identified as at Walker's
residence, in close proximity to the crime scenes at matching times; police tracking of
victim Taylor's stolen cellphone which allowed officers to pinpoint its presence in
Walker's Kansas City residence; the fruits of the search warrant on Walker's residence
which included the personal belongings taken directly from victim Foley; the presence of
the sawed-off shotgun in Walker's residence and its forensic connection as the weapon
that killed Phoebe; and the Facebook pages which connected Walker to the possession of
a shotgun and ammunition at times closely before and after the Lawrence crimes. Even
taking into consideration that virtually all the DNA and fingerprint testing in the case was
inconclusive, we conclude that the State's other evidence was strong and clear
circumstantial evidence of Walker's guilt.
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Under the circumstances, we find that any prosecutorial error was harmless and
that Walker's due process rights to a fair trial were not violated.

Admission of Walker's Facebook records

Walker's second issue on appeal is his contention that the district court erred in
admitting Facebook records into evidence because the records were not properly
authenticated. The State claims that Walker failed to properly preserve this issue for
appeal but also argues that the records were properly authenticated.

"When the adequacy of the trial court's legal basis for admission of evidence is
challenged, the appellate court will review the challenge under a de novo standard.
[Citation omitted.]" State v. Brown, 307 Kan. 641, 644, 413 P.3d 783 (2018). When the
question of whether the district court complied with specific statutory requirements for
admitting evidence requires interpretation of a statute, appellate review is also de novo.
See State v. Stafford, 296 Kan. 25, 47, 290 P.3d 562 (2012).

As a threshold matter, Walker claims that he preserved this issue for appeal
because he objected to the admission of the Facebook records at trial. The State
acknowledges Walker's objection to the district court but claims the timing of his
objection presents a problem when it comes to preserving the issue for appellate review.
Under K.S.A. 60-404, we are generally precluded from reviewing an evidentiary
challenge absent a timely and specific objection made on the record. See State v. Powell,
308 Kan. 895, 917, 425 P.3d 309, 323 (2018). The record on appeal supports the State's
argument.

Walker claims here that he made an appropriate objection to preserve this issue for
appellate review. He cites to a section of the trial transcript just after the State called a
detective from the Lawrence Police Department as a witness. The record reveals that
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before the detective was asked any questions or even stated his name, defense counsel
requested to approach the bench. At that time, defense counsel—outside the hearing of
the jury—referenced a previous objection to the records and testimony, "and rather than
regurgitate [sic] that, we would ask that the Court incorporate our prior arguments and
objections to this evidence, and obviously, I would renew that objection now." The
district judge speculated that defense counsel referred to Facebook communications. The
State offered to provide pages from a transcript of the district court's ruling during one of
the previous jury trials, which allowed admission of the Facebook evidence, for the court
to incorporate into the current record. Defense counsel agreed with the State's suggestion
and allowed the transcript of the court's prior ruling into evidence. The district court
judge then stated, "Just to make the record clear, my ruling at this point would not change
based upon the objections that you raised in October." (Emphasis added.)

The parties agree in their briefs that this exchange referenced Walker's objection to
the Facebook records' admission at his second trial. Review of the second trial transcript
reveals that after the State questioned the detective and then offered the Facebook records
into evidence, Walker objected. Outside the presence of the jury, defense counsel
objected to the Facebook records based on authentication—as it relates to relevance—and
hearsay. The district court—at that time—found that the Facebook exchanges were not
being offered for truth of the statements within them and so they were not hearsay. The
district court found that Walker's comments and the content within the posts was relevant
in potentially tying the shotgun to Walker. The court also found that many of the
statements Walker made were against his interests, including those regarding planning
and preparation, and were thus admissible as such. The district court also found that the
content of the posts went to the weight of the records, not to their admissibility.

After the district judge's comment in this trial, the State began to question the
detective. The detective gave his name and then testified for approximately eight pages
regarding his experience, promotions, training, and his specialty and expertise regarding
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electronic records. He testified regarding the search warrant obtained for collecting
Walker's Facebook records. The detective described the Facebook records as "self-
authenticating," and explained that term relative to Facebook's disclosure when it turned
over the records, electronic media, user names, and passwords. He also explained the
timestamps and time differences from where the records were generated. The detective
also explained that he modified the records he obtained from Facebook to make them
easier to read by italicizing and highlighting certain aspects of the records, but he did not
change the records' content. The State then moved to admit the Facebook records.

The district court asked defense counsel if he had any objections. Counsel
requested to voir dire the detective and then questioned him—in the presence of the
jury—regarding the records' authenticity. Counsel questioned the detective for
approximately seven pages in which the detective further explained about a user's unique
Facebook identification number imbedded within the files received from Facebook. The
detective explained that he was able to locate Walker's Facebook profile by using that ID
number provided in the records. When defense counsel finished voir dire, he stated, "I
have no objection to the exhibits, Your Honor." The district court then admitted the
Facebook records into evidence, and the State resumed its examination of the detective.

As the State noted in its brief, the rationale for the contemporaneous objection rule
is that a district court is not in position to fully consider whether to admit the evidence
until the evidence is offered at trial because the "'[m]ateriality of the proposed evidence
may not become actually apparent until other evidence has been admitted.'" State v.
Jones, 267 Kan. 627, 638, 984 P.2d 132 (1999) (quoting State v. Nunn, 244 Kan. 207,
213, 768 P.2d 268 [1989]); see State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012),
overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016).
Further, requiring an objection at the time the evidence is offered to preserve the issue for
appeal is consistent with the language of K.S.A. 60-404 and allows a court to reconsider
an earlier ruling after hearing how the evidence unfolds during the trial. See State v.
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Potts, 304 Kan. 687, 700, 374 P.3d 639 (2016). Walker's objection to the Facebook
records prior to any testimony or the State's motion to admit them was not
contemporaneous with the offer of evidence.

Although Walker's objection was characterized as a "regurgitated" objection, to
the degree that it could be considered a continuing objection, it still does not meet the
contemporaneous objection rule. Even a continuing objection does not operate
prospectively to preserve review of an unspecified future evidentiary issue. See State v.
Miller, 293 Kan. 535, 553-54, 264 P.3d 461 (2011). This is particularly true in
circumstances such as the present case. Here, Walker lodged his objection immediately
after the State called its witness. Following a vague discussion of the objection and the
evidence in question, the district court specified that its ruling on Walker's arguments
raised in his previous trial would not change "at this point."

Moreover, Walker's premature objection before the State even began to question
the detective left open the question of which statements or exhibits Walker might later
contest. Although the district judge and the parties presumed from their previous
experience at the second trial the context in which Walker was contesting the evidence,
i.e., the entirety of the "Facebook communications," this presumption was not borne out
because—when the time came—defense counsel explicitly and unequivocally did not
object to the Facebook records' admission.

"[E]videntiary claims . . . must be preserved by way of a contemporaneous
objection for those claims to be reviewed on appeal." State v. King, 288 Kan. 333, 349,
204 P.3d 585 (2009). When the time came, Walker did not object to the admission of the
Facebook records, so he cannot now challenge the district court's ruling. See Wentland v.
Uhlarik, 37 Kan. App. 2d 734, Syl. ¶ 6, 159 P.3d 1035 (2007) ("The trial court cannot be
accused of abusing its discretion in the admission of evidence when the complaining
party failed to object and thereby give the trial court an opportunity to exercise its
15
discretion on the matter."). The lack of a specific contemporaneous objection to the
records in question precludes this court from considering this issue. See State v.
Bollinger, 302 Kan. 309, 323-24, 352 P.3d 1003 (2015) (continuing objection does not
take place of contemporaneous objection at time of testimony; defendant failed to
preserve issue for appeal).

In short, not only did the defense counsel fail to lodge a contemporaneous
objection to the detective's testimony about Walker's Facebook pages, he explicitly
consented to their admission when the question was put to him. Under the circumstances
we hold that this issue has not been properly preserved for appeal, and it is dismissed.

Alleged unconstitutional application of KORA

As his final issue, Walker claims that the district court improperly ordered that he
register as a violent offender under the Kansas Offender Registration Act, K.S.A. 22-
4901 et. seq. He contends this "additional punishment" was based on a factual finding by
the district court—that he committed his crimes with a deadly weapon—in violation of
Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and argues this order must be vacated. The State argues that Walker did not raise this
issue below but also that this issue is long-settled against him.

Walker acknowledges he did not raise this issue below. Generally, issues not
raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965,
971, 318 P.3d 987 (2014). Likewise, constitutional grounds for reversal asserted for the
first time on appeal are not properly before the appellate court for review. State v. Daniel,
307 Kan. 428, 430, 410 P.3d 877 (2018).

But, as Walker notes, there are exceptions to this general rule. Those established
exceptions which allow consideration of a new legal theory to be asserted for the first
16
time on appeal include: (1) the newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case and (2)
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). An
appellant is required to explain why an issue that was not raised below should be
considered for the first time on appeal. Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct.
R. 34); see State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (Rule 6.02[a][5]
will be strictly enforced); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014)
(litigants who fail to comply with Rule 6.02[a][5] risk ruling that issue is improperly
briefed, and issue will be deemed waived or abandoned).

Walker claims that this court can consider this issue because both of these
exceptions apply—"this issue presents a question of law and involves [his] fundamental
rights, i.e., the right to a jury trial." However, the first exception is not limited to whether
the issue is a question of law but requires that the question turn on proved or admitted
facts, and also that the issue be finally determinative of the case. Walker disputes the
factual foundation for the order, he does not claim that the registration order is finally
determinative of his case, and the order does not have any bearing on his convictions.
The first exception clearly does not apply.

However, as Walker claims he had a right to have a jury determine any facts
which increase a penalty, we may consider this issue under the fundamental rights
exception. See State v. Huey, 306 Kan. 1005, 1009, 399 P.3d 211 (2017). This issue
presents a question of law, so our review is unlimited. 306 Kan. at 1009.

Our Supreme Court has held that the requirement for a convicted felon to register
under KORA does not constitute punishment; therefore, any fact-finding made by the
district court to determine if registration is required is not unconstitutional. See Huey, 306
Kan. at 1009-10; see also State v. Petersen-Beard, 304 Kan. 192, 209, 377 P.3d 1127.
17
Walker acknowledges that precedent is against him but argues that the Kansas
Supreme Court was incorrect to find that KORA is not "punitive in nature." However,
again, the Kansas Supreme Court has repeatedly rejected the argument that offender
registration under KORA is punishment. See, e.g., State v. Watkins, 306 Kan. 1093, 1095,
401 P.3d 607 (2017); Huey, 306 Kan. at 1009-10; Petersen-Beard, 304 Kan. at 209.

In Huey, the Kansas Supreme Court found that because the Kansas Legislature
intended KORA to be a civil regulatory scheme—not punishment—a defendant must
present "the clearest proof" that registration is punitive before the court would consider
registration a criminal penalty. 306 Kan. at 1010. The court must consider several factors
to determine whether KORA's effects render it punitive as applied to violent offenders.
These questions are fact intensive and require a robust record. But Huey raised his
Apprendi challenge for the first time on appeal and thus failed to present facts in district
court which showed that the registration's effects on him were punitive. Without a record,
the court held it could not conclude the effects of KORA were so punitive to override the
Legislature's intent that KORA be a civil remedy. Huey, 306 Kan. at 1010. In our case,
just as in Huey, Walker failed to raise the issue below. Consequently, he failed to present
facts to establish that the effects of registration under KORA were of such a punitive
nature that they overrode the intent of that legislation.

In fact, Walker's entire argument on this issue turns on whether there is a legally
meaningful distinction between the jury's finding that he committed his crimes with a
"dangerous" weapon versus a "deadly" weapon for registration purposes. Walker cites
two Court of Appeals cases, which he acknowledges have somewhat inconsistent
holdings on that distinction. The first is State v. Carter, 55 Kan. App. 2d 511, 517-18,
419 P.3d 55 (2018), rev. granted 309 Kan. 1350 (2019), which held the use of a stun gun
during the defendant's crimes was not covered by KORA because the stun gun was not a
deadly weapon. Carter also found the registration requirement applies when the offender
uses a deadly weapon. 55 Kan. App. 2d at 517-18. Walker asks this court to compare
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Carter with State v. Franklin, 44 Kan. App. 2d 156, 161-62, 234 P.3d 860 (2010), which
held that a defendant's guilty plea to aggravated robbery where he used a dangerous
weapon—a BB pistol—was an admission to an element of the crime, and use of a
dangerous weapon was synonymous with "deadly weapon" for registration purposes
under KORA. 44 Kan. App. 2d at 158-59. The Franklin panel also found that the
defendant's constitutional rights under Apprendi were not violated by the registration
requirement. 44 Kan. App. 2d at 161-62.

Both Carter and Franklin are Court of Appeals cases, and are not controlling, but
merely persuasive authority—but even less so because of their inconsistencies. One Court
of Appeals panel has the right to disagree with a previous panel of the same court, as the
Carter panel did with Franklin. See Graham v. Herring, 297 Kan. 847, 861, 305 P.3d
585 (2013). However, there is "no authority for one panel of the Court of Appeals to
disapprove or overrule a decision of another panel of the same court." In re Marriage of
Cray, 254 Kan. 376, 382, 867 P.2d 291 (1994).

It is noteworthy that the jury instructions at Walker's trial defined "dangerous
weapon" as "an instrument which, from the manner in which it is used, is calculated or
likely to produce death or serious bodily injury." (Emphasis added.) Based on the jury
instructions, Walker's claim that there is a meaningful distinction between the jury's
finding he committed his crimes with a "dangerous" weapon and the district court's
finding that the weapon was "deadly" is contradicted by the record. More importantly,
this claim does not meet the requirement under Huey that Walker provide the clearest
proof that KORA is punitive.

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent,
absent some indication the Supreme Court is departing from its previous position. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Recently, another panel of this
court acknowledged it was duty bound to follow Supreme Court precedent, found that a
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district court's registration order did not increase a defendant's punishment, and that it
was unnecessary for a jury to find the defendant used a deadly weapon in the commission
of his crime. State v. Atkins, No. 119,878, 2019 WL 4123070, at *6 (Kan. App. 2019)
(unpublished opinion), petition for rev. filed September 18, 2019. There is no indication
our Supreme Court is departing from its previous position. Consequently, Huey controls
here and—absent some clear proof that Walker's registration is punitive—the district
court's registration order must be affirmed.

Affirmed in part and dismissed in part.