                           NOT DESIGNATED FOR PUBLICATION

                                               No. 120,251

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                        RICHARD E. TIMMONS,
                                             Appellant.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed May 15, 2020.
Affirmed in part, sentence vacated, and remanded with directions.


        Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.


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


Before GREEN, P.J., POWELL and SCHROEDER, JJ.


        PER CURIAM: Richard E. Timmons appeals his conviction and sentencing for
distribution of heroin in violation of K.S.A. 2016 Supp. 21-5705(a)(1). On appeal,
Timmons argues that the district court committed two jury instruction errors. First, he
argues that the district court erred by instructing the jury that it "should" convict
Timmons if it found all the State's claims true beyond a reasonable doubt. Second,
Timmons argues that the court erred by placing on the verdict form the option of guilty
before the option of not guilty. Finally, Timmons argues that the district court erred at
sentencing by classifying his prior conviction for attempted failure to register as a drug

                                                     1
offender as a person felony when it should have been classified as a nonperson felony.
Because the district court erred only in classifying Timmons' prior conviction as a person
felony, we affirm his conviction but vacate his sentence and remand for resentencing.


          In December 2016, undercover Wichita Police Detective Stephanie Neal
purchased heroin from Timmons. The State charged Timmons with distribution of heroin
in violation of K.S.A. 2016 Supp. 21-5705(a)(1). At a trial before a jury, Neal testified
that an informant took her to a house where Timmons was staying and where the sale
took place. Neal testified that she gave Timmons $150 for a baggie filled with heroin.
Neal then field tested the substance and confirmed it was heroin. Neal then packaged and
sent the substance to a forensic science lab, which confirmed that the substance was
heroin. The jury convicted Timmons of one count of distribution of heroin.


          At sentencing, Timmons objected to the calculation of his criminal history score.
He argued that his prior conviction for attempted failing to register as a drug offender
should not be counted as a person felony in scoring his criminal history. Timmons
contended that this prior conviction should be scored as a nonperson felony. The district
court denied the objection. And the district court sentenced Timmons to 40 months in
prison.


          Timmons timely appeals his conviction and sentencing.


Did the District Court Err By Instructing the Jury That It "Should" Convict Timmons If It
Found All of the State's Claims True Beyond a Reasonable Doubt?


          "When analyzing jury instruction issues, we follow a three-step process: '(1) determining
          whether the appellate court can or should review the issue, i.e., whether there is a lack of
          appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the
          merits of the claim to determine whether error occurred below; and (3) assessing whether


                                                        2
       the error requires reversal, i.e., whether the error can be deemed harmless.' [Citation
       omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).


       At the second step, appellate courts consider whether the instruction was legally
and factually appropriate. McLinn, 307 Kan. at 318. Appellate courts use unlimited
review to determine whether an instruction was legally appropriate. State v. Johnson, 304
Kan. 924, 931-32, 376 P.3d 70 (2016).


       Our Supreme Court "strongly recommend[s] the use of PIK instructions, which
knowledgeable committees develop to bring accuracy, clarity, and uniformity to
instructions." State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018).


       The first step in this inquiry concerns preservation, which is not contested.
Defense counsel here posed an objection to the instruction at the jury instruction
conference. Thus, this issue is preserved.


       Timmons argues that it was not legally appropriate for the district court to give the
jury the following instruction:


               "The State has the burden to prove the defendant is guilty. The defendant is not
       required to prove he is not guilty. You must presume that he is not guilty unless you are
       convinced from the evidence that he is guilty.
               ". . . If you have a reasonable doubt as to the truth of any of the claims required
       to be proved by the State, you must find the defendant not guilty. If you have no
       reasonable doubt as to the truth of each of the claims required to be proved by the State,
       you should find the defendant guilty."


       Timmons objected to the use of the word "should" in the final sentence, arguing
instead that the jury should have been told that they "may" find the defendant guilty if the



                                                    3
State proves every element of the charge. Timmons bases his argument on the jury's
power of nullification.


       Specifically, Timmons relies on our Supreme Court's holding in State v. Smith-
Parker, 301 Kan. 132, 163-64, 340 P.3d 485 (2014), overruling State v. Lovelace, 227
Kan. 348, 354, 607 P.2d 49 (1980). In Smith-Parker, the court considered a jury
instruction that told the jury the following: "'If you do not have a reasonable doubt from
all the evidence that the State has proven murder in the first degree on either or both
theories, then you will enter a verdict of guilty.'" 301 Kan. at 163. The Smith-Parker court
compared this instruction to an instruction in the earlier Lovelace case. The instruction at
issue in Lovelace told the jury that if the State proved its case beyond a reasonable doubt,
then the jury "must" convict. The Smith-Parker court decided that telling a jury that they
either "must" or "will" convict would "fly too close to the sun of directing a verdict for
the State." 301 Kan. at 164. For that reason, the Smith-Parker court rejected both the use
of the word "will" and the earlier Lovelace court's approval of the word "must."


       Timmons argues that the Smith-Parker court rejected both the words "will" and
"must" and would likely view instructing a jury that they "should" convict to be an
overreach as well. For this premise, Timmons relies on language from the now-overruled
Lovelace, stating that the words "must" and "should" can be used interchangeably in
criminal instructions. 227 Kan. at 354. Timmons argues that if the words "must" and
"should" are the same, then the Smith-Parker opinion discarding the word "must" would
also mean retaining the word "should" would also be unacceptable. According to
Timmons, the appropriate wording would require the court to instruct the jury that they
"may" convict if the State proves its case beyond a reasonable doubt.


       But Timmons misreads Smith-Parker. The Smith-Parker court rejected the use of
the words "must" and "will," but it did not reject the use of the word "should." For
example, the instruction that Smith-Parker argued for was the following: "If you have no

                                              4
reasonable doubt as to the truth of each of the claims required to be proved by the State,
you should find the defendant guilty." 301 Kan. at 163. And, thus, the Smith-Parker court
approved of the word "should" being used in this instance. In short, Timmons misstates
precedent on this point.


       Timmons attempts to bolster his argument by citing to Merriam-Webster for the
definitions of "should" and "must." In doing so, he argues that both words convey a sense
of moral obligation. Timmons, however, acknowledges that the word "should" may
convey less of an obligation than the word "must." He still argues that the word "should"
conveys an obligation. And he also contends that a jury never has an obligation to
convict. To that end, Timmons maintains that proof beyond a reasonable doubt merely
authorizes a jury to convict. So, he argues that the jury is never obligated to convict
because of the power of jury nullification. Timmons then contends, without citation to
any authority, that "a trial judge has no business advising a jury on a 'proper course of
action' with regard to a guilt determination." Also, Timmons contends that a trial judge
should not "'encourage' a jury down an 'advised path'" regarding a guilt determination.


       On the other hand, the State counters Timmons' contentions with binding
precedent from our Supreme Court. First, the State quotes the following from State v.
McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973): "[I]t is the proper function
and duty of a jury to accept the rules of law given to it in the instructions by the court,
apply those rules of law in determining what facts are proven and render a verdict based
thereon." Then, the State argues that the jury can neither be instructed that they have the
power of nullification, nor instructed that they are forbidden from nullifying. See State v.
Boothby, 310 Kan. 619, 630-31, 448 P.3d 416 (2019) (holding that an instruction is
erroneous if it forbids the jury from exercising its power of nullification); State v. Naputi,
293 Kan. 55, 66, 260 P.3d 86 (2011) (holding that "an instruction enabling the power of
jury nullification could not survive because it undermined the traditional functions of the
court and the jury").

                                               5
         Next, the State argues that this court has already rejected Timmons' argument on
this point. According to the State's reading of State v. Allen, 52 Kan. App. 729, 735-36,
372 P.3d 432 (2016), this court found itself bound by our Supreme Court's precedents.
The State points out that Allen reviewed our Supreme Court's holdings in McClanahan,
Naputi, and Smith-Parker before applying these precedents. The State here asks us to
apply the principle of stare decisis and stand by our decision in Allen. Alternatively, the
State argues that use of the term "should" in the instruction would result only in harmless
error.


         We conclude that the State's reading of Allen is correct. The instruction in Allen
reads as follows: "If you have no reasonable doubt as to the truth of each of the claims
required to be proved by the State, you should find the defendant guilty." 52 Kan. App.
2d at 733. The language contested in Allen is identical to the language Timmons
challenges here. This is not a coincidence. Both instructions mirror PIK Crim. 4th 51.010.
As this court stated in Allen, although the use of PIK instructions is not required, it is
strongly recommended. This is because PIK instructions have been developed by a
knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.
"Absent a particular need under the facts of a case to alter . . . PIK instructions, they
should be followed." State v. Acevedo, 49 Kan. App. 2d 655, 663, 315 P.3d 261 (2013).
This court in Allen then reviewed our Supreme Court's precedents on the issue of
instructing a jury on its inherent power of nullification, balanced against the danger of
directing a jury to convict. See Allen, 52 Kan. App. 2d at 734-35. Finally, this court
concluded its review of precedent in Allen by pointing out that we rejected this same
argument in several unpublished opinions. 52 Kan. App. 2d at 735.


         Since our opinion in Allen, PIK Crim. 4th 51.010 has not changed. The only
change in our Supreme Court's precedent has been reiteration of the recommendation to
follow the language of the PIK. State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018)

                                               6
(strongly recommending "the use of PIK instructions, which knowledgeable committees
develop to bring accuracy, clarity, and uniformity to instructions"). For these reasons, we
conclude that no error occurred in the use of the word "should" in the challenged jury
instruction and affirm the district court.


Did the District Court Err By Giving the Jury a Verdict Form Which Placed the Option
for Guilty Before the Option for Not Guilty??


       As with Timmons' previous argument, the parties only contest whether the
instruction is legally appropriate. Thus, we exercise unlimited review. Johnson, 304 Kan.
at 931-32.


       During the jury instruction conference, Timmons requested that "not guilty" be
listed on the verdict form first, with "guilty" coming after. The district court overruled
this objection. Thus, Timmons' objection is preserved for appeal.


       On appeal, Timmons argues that the Sixth and Fourteenth Amendments to the
United States Constitution guarantee a fair trial and the presumption of innocence is part
of that right. And so Timmons argues that the placement of the options of "guilty" and
"not guilty" must comply with the presumption of innocence. Thus, Timmons argues that
the "not guilty" option should have been placed first on the verdict form.


       As with Timmons' previous argument, the challenged instruction given by the
district court conforms to the applicable PIK instruction. Timmons acknowledges this
conformity. Timmons also acknowledges that our Supreme Court's precedent has
approved the placing of the "guilty" option before the "not guilty" option on the verdict
form. Still, Timmons argues that the presumption of innocence is such a fundamental
principle that there is no reason the district court should have followed the PIK
instruction.

                                              7
       Specifically, Timmons discusses State v. Wesson, 247 Kan. 639, 652-53, 802 P.2d
574 (1990). There, Wesson argued that "guilty" should not be placed first, for the same
reasons Timmons asserts here: the presumption of innocence. Yet, our Supreme Court
rejected Wesson's argument. Also, our Supreme Court reiterated its Wesson holding in
State v. Wilkerson, 278 Kan. 147, 159, 91 P.3d 1181 (2004).


       Nevertheless, Timmons reargues the matter. He contends that Wesson was
wrongly decided, arguing that our Supreme Court was wrong to say that the "purpose of a
trial is to determine if the accused is guilty." 247 Kan. at 652. Timmons argues instead
that "[t]he purpose of the jury trial . . . is to prevent oppression by the Government,"
quoting Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970).
Timmons thus maintains that our Supreme Court in Wesson incorrectly put the focus on a
determination of guilt instead of innocence.


       The State counters Timmons' arguments by citing to our Supreme Court precedent
in Wesson and Wilkerson. The State also points to this court's unpublished opinions that
rely on Wesson and reject the argument that the "not guilty" option should be listed
before the "guilty" option. See State v. Vargas, No. 119,741 2019 WL 5485179, at *5
(Kan. App. 2019) (unpublished opinion) (holding "Not only do we believe the decision in
Wesson to be correct but we also are duty bound . . . to follow the precedent of our
Supreme Court . . . ."); State v. Pack, No. 110,467, 2015 WL 1513974, at *5 (Kan. App.
2015) (unpublished opinion). In any event, the State argues that any error resulting from
placing the "guilty" option before the "not guilty" option on the jury verdict form is
harmless.


       We are duty-bound to follow our Supreme Court's precedent absent some
indication that our Supreme Court is departing from its previous position. State v. Vrabel,
301 Kan. 797, 809-10, 347 P.3d 201 (2015). For nearly 30 years, both our Supreme Court

                                               8
and this court have applied the holding in Wesson for the order of the "guilty" and "not
guilty" options on verdict forms. We have no reason to conclude that our Supreme Court
will retreat from its holding in Wesson on this issue. Vargas, 2019 WL 5485179, at *5.
For this reason, we affirm the district court's use of the PIK jury verdict form at trial.


Did the District Court Err By Classifying Timmons' Prior Conviction For Failure to
Register as a Person Felony?


       Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA).
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. State v. Keel, 302 Kan. 560, 571-72, 357 P.3d 251 (2015).


       In 2010, Timmons was convicted of attempted failure to register as a drug
offender, contrary to K.S.A. 22-4903. When this offense was committed, failure to
register was a person felony. K.S.A. 22-4903(a). But here, Timmons committed his
current crime of conviction in December 2016. By that time, the Legislature had
amended the statute such that a conviction would count as a person or nonperson felony
based on the underlying crime for which the defendant was required to register. K.S.A.
2016 Supp. 22-4903(c)(1); see K.S.A. 2016 Supp. 21-5705(d). Timmons argues that this
timeline affects his criminal history because his 2010 conviction should be classified as a
nonperson felony.


       Timmons notes that our Supreme Court in Keel held that "the classification of a
prior conviction or juvenile adjudication as a person or nonperson offense for criminal
history purposes under the KSGA is determined based on the classification in effect for
the comparable Kansas offense at the time the current crime of conviction was
committed." 302 Kan. at 590. As a result, Timmons argues that the district court
improperly classified Timmons' prior conviction by scoring it as a person felony under

                                               9
the statute in effect in 2009. And so Timmons contends that it should have been classified
as a nonperson felony because that was its classification in 2016 when he committed the
current crime of conviction.


       The State concedes the correctness of Timmons' argument. Timmons' underlying
offense, which he was required to register for, was distribution of cocaine. In 2016,
distribution of cocaine was classified as a nonperson felony. See K.S.A. 2016 Supp. 21-
5705(d). In 2016, the failure to register was "designated as a person or nonperson crime
in accordance with the designation assigned to the underlying crime for which the
offender is required to be registered." K.S.A. 2016 Supp. 22-4903(c)(2). Thus, the State
concedes that Timmons is entitled to be resentenced with his attempted offender
registration violation rescored as a nonperson felony.


       Our Supreme Court's decision in Keel clarified that the proper classification of
prior convictions would be the classification when the current crime of conviction
occurred. For this reason, we vacate his sentence and remand to the district court for
resentencing.


       Affirmed in part, vacated in part, and remanded to the district court with
directions.




                                            10
