                                        No. 109,350

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                    JAMIE G. MARSHALL,
                                         Appellant.


                               SYLLABUS BY THE COURT




1.
         Appellate review of an allegation of prosecutorial misconduct involving improper
closing arguments requires a two-step analysis. First, an appellate court must determine
whether the prosecutor's comments were outside the wide latitude that the prosecutor is
allowed in discussing the evidence. Second, if misconduct is found, the appellate court
must determine whether the improper comments constitute plain error; that is, whether
the statements prejudiced the jury against the defendant and denied the defendant a fair
trial.


2.
         A prosecutor may not state a personal opinion regarding the ultimate guilt or
innocence of a defendant. A prosecutor may state that the defendant committed the crime
when such a statement is accompanied by language directing the jury to consider the
evidence supporting the State's charge, thus rendering the prosecutor's statement merely
directional and not an expression of the prosecutor's personal opinion.




                                              1
3.
       A prosecutor may not impeach a defendant's credibility at trial by introducing
evidence that the defendant did not avail himself or herself of the first opportunity to
clear his or her name when confronted by police officers but instead invoked his or her
constitutional right to remain silent. A prosecutor may, however, impeach a defendant's
credibility at trial by introducing evidence of the defendant's prior statements made
prearrest, or made postarrest to fellow jailhouse inmates, when those statements are
inconsistent with the defendant's trial testimony.


4.
       In closing arguments a prosecutor must confine his or her comments to matters in
evidence. It is improper for a prosecutor to speculate as to the internal thought processes
of witnesses. However, prosecutors are given wide latitude to craft arguments that
include inferences that can reasonably be drawn from the evidence.


5.
       The requirement that facts increasing the maximum penalty for a crime be charged
in an indictment only applies in federal cases, as the Fifth Amendment's grand jury
provision does not apply to the states through the Fourteenth Amendment.


6.
       The notice requirement for state criminal cases is found in the Sixth Amendment
to the United States Constitution. The Sixth Amendment requires that the defendant be
given notice of the accusations against him or her and an opportunity to respond to them.
Such notice must be sufficient to make the opportunity useful.


7.
       K.S.A. 2013 Supp. 21-6817(b)(1) requires the State to provide notice that it
intends to seek an upward sentencing departure and to provide information to the court

                                              2
regarding the alleged fact or factors that may increase the penalty no less than 30 days
prior to trial, or 7 days from the arraignment if the trial is to take place in less than 30
days. These notice provisions are sufficient to satisfy the requirements of the Sixth
Amendment.


8.
        A defendant's criminal history need not be proven beyond a reasonable doubt to a
jury.


        Appeal from Johnson District Court; JOHN P. BENNETT, judge. Opinion filed September 5, 2014.
Affirmed.


        Samuel Schirer, of Kansas Appellate Defender Office, of Topeka, for appellant.


        Steven J. Obermeier, deputy district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before BUSER, P.J., STEGALL, J., and BUKATY, SJ.


        STEGALL, J.: Jamie Marshall was convicted of raping A.M., a developmentally
disabled adult under his care. The State alleged and the jury found a fiduciary
relationship between Marshall and A.M. and, as such, Marshall received an enhanced
sentence. This is Marshall's direct appeal claiming: (1) the State committed reversible
misconduct during closing arguments; (2) he was denied his due process rights under the
Fifth and Sixth Amendments because the State did not allege the aggravating factor of a
fiduciary relationship in the criminal complaint; and (3) an Apprendi violation. Because
we find that no reversible error occurred below, we affirm.




                                                   3
                                           FACTS


         A.M. is a developmentally disabled adult with moderate mental retardation.
Because of her disabilities, A.M. is not able to live independently. In February 2012, she
was living in Caring Hands, a facility that provides care and supervision in a residential
setting. On January 28, 2012, A.M. developed a skin rash on her upper inner thigh as a
result of an antibiotic she had been taking. A yellow tinted medical cream was being used
by Caring Hands to treat the rash. By February 28, 2012, the rash had cleared.


         Jamie Marshall was one of the Caring Hands employees charged with A.M.'s care
during this time. His job duties entailed transporting the residents to day activities and
supervising them in the evening hours, occasionally staying overnight. On the afternoon
of February 28, 2012, Marshall arrived to work at the Caring Hands residence where
A.M. and two other Caring Hands residents lived. Also staffing the residence that
afternoon was Caring Hands employee Emma White. About 5:30 p.m., White left
Marshall alone with A.M. and the other two residents in order to attend a work training
event.


         During the morning hours of February 28, Marshall had been engaged in a drawn
out argument with his girlfriend, Lindsey Misner, with whom he had a child. Marshall
and Misner lived together in an apartment near A.M.'s Caring Hands residence. After
White left the Caring Hands residence, Marshall loaded all three of the Caring Hands
residents into the Caring Hands van and drove to his apartment to continue his domestic
dispute with Misner. Marshall and the residents returned to the Caring Hands residence at
about 6 p.m. that evening.


         Marshall and the State presented very different versions of what happened next.
According to Marshall, after bringing A.M. and the other residents back to the Caring
Hands facility, he stepped outside to call Misner. When he went back inside he found

                                              4
A.M. sitting on the corner of her bed with her pants pulled down below her waist. When
Marshall told her to pull her pants up, A.M. responded, "It hurts," and pointed to her
genitals. Marshall testified that he was aware of A.M.'s rash and assumed that the rash
was causing A.M. discomfort. Marshall then called White and asked when she planned to
be back at the Caring Hands residence. According to Marshall, he discussed applying
medication to A.M.'s rash; however, White testified that the only subject of the call was
how much longer she was going to be away from the residence. Marshall testified that
after the call with White he went to the medicine cabinet, retrieved the rash medication,
and applied it to A.M.'s "legs and all over the top of her vagina." Marshall testified that
after he applied the medication, A.M. gave him a hug and said thank you.


       A.M. also testified at trial. In her testimony, she said, "[H]e poked me in my
private area . . . [w]ith the poker." A.M. testified that Marshall used a pink lotion, not the
yellow tinted cream, and that when Marshall touched her it made her feel sad. A.M. then
clarified that Marshall poked her on the inside of her body. A cup and pen were used to
demonstrate the difference between inside and outside due to A.M.'s significant verbal
and conceptual disabilities.


       Following the incident, Marshall again drove to his apartment in the Caring Hands
van. This time, he took only A.M. with him, leaving the other two residents unattended.
Misner testified that when he arrived, Marshall was acting agitated and angry and began
to demand money. At this time, a friend of Misner's was present in the apartment.
Misner's friend became concerned due to the escalating nature of the argument and called
the police, at which point Marshall left the apartment. During this time, A.M. never left
the van.


       Soon thereafter, Marshall arrived with A.M. back at the Caring Hands residence.
In the meantime, another Caring Hands employee, Amanda Mathews, had come to the
residence. Mathews testified that after dropping A.M. off, Marshall told her he had an

                                              5
emergency and left in a rush. Marshall then returned to his apartment. On arriving,
Marshall found Officer Jason Goddard at the scene in response to the domestic
disturbance call. Goddard testified that Marshall and Misner were arguing over money in
a savings account that Marshall felt was his. Marshall stated that he needed the money for
gas. Marshall was eventually allowed to leave the apartment.


       Back at the Caring Hands residence, Mathews noticed that A.M. was wearing
pajama pants when Marshall dropped her off, which struck Mathews as unusual.
Similarly, prior to A.M.'s return, Mathews had noticed that A.M.'s service dog was at the
residence without A.M, which was also unusual. Later that evening, while A.M. was in
the restroom, she began to call for Mathews. Mathews asked A.M. what was wrong, and
A.M. said that she was hurt and pointed to her genitals. Mathews asked why she was
hurting, and A.M. responded, "Jamie, Jamie," and began to cry. Mathews then took A.M.
to the hospital.


       At the hospital, Officer Brandon Faber responded to the reported rape. Faber
testified that he spoke to A.M. at the hospital and she told him that a person named Jamie
put too much lotion on her genitals and hurt her. Jennifer Johnson, the program
coordinator for the Forensic Assessment Consultation and Treatment Program, testified
that she examined A.M. on February 28, 2012. Johnson testified that A.M. told her that
Marshall had smeared lotion on her, hurt her, and she was upset that Marshall had not
apologized for hurting her. A.M. told Johnson that Marshall was the one who took her
pants off. Johnson's examination of A.M. revealed a fresh laceration on A.M.'s fossa
navicularis, an injury that was consistent with penetration of the vagina. Johnson
collected DNA swabs and A.M.'s clothing for DNA testing.


       The next day Jennifer Coughlin, a forensic interviewer employed by Sunflower
House, spoke to A.M. During that interview A.M. told Coughlin that Marshall had put
too much lotion on A.M. with his hands, that it hurt, that it made her real sad, and that he

                                             6
did not say he was sorry. A.M. stated that Marshall had used a pink lotion, that Marshall
had touched her inside her body, and that she had asked Marshall to stop.


       Meanwhile, after leaving his apartment following the domestic disturbance call,
Marshall went to his uncle's home in Overland Park, Kansas, where he stayed the night.
Marshall testified that around midnight he received a call from the director of Caring
Hands to inform him that there were suspicions that Marshall had raped A.M. The next
morning, Marshall left his uncle's house and drove to his mother's home in Connecticut.
According to Marshall, he had a previously arranged visit to Connecticut planned and he
wanted to take his car to his mother's house so Misner could not sell it. However,
Marshall told Misner that he was headed west, telling her at various times that he was
going to Salina and Arizona.


       Marshall eluded law enforcement for 2 weeks. He was eventually tracked down in
Connecticut, arrested, and transported back to Kansas in the middle of March. While he
was in jail in Johnson County, Marshall met and talked with fellow inmate Jeremy
Valadez. Valadez testified that Marshall had admitted, over the course of several
conversations, that Marshall had used his fingers to penetrate A.M. Valadez testified that
Marshall said he fled to Connecticut because of the charges against him and never said
anything about treating A.M.'s rash with medical ointment.


       Additional evidence presented by the State included DNA evidence showing that
Marshall's DNA matched the profile of the DNA on genital swabs taken from A.M. on
the night of February 28 and recordings of phone conversations Marshall had with
Misner while he was in jail indicating that he drove to Connecticut because he was
confused and he wanted to get away.


       The jury convicted Marshall of one count of rape and returned a unanimous
finding that there had been a fiduciary relationship between Marshall and A.M. at the

                                            7
time of the rape. At sentencing, the State's upward departure motion (which had been
filed prior to trial alleging the fiduciary relationship) was granted and Marshall was
sentenced to 300 months in prison.


       Marshall timely appeals.


                              PROSECUTORIAL MISCONDUCT


       Appellate review of an allegation of prosecutorial misconduct involving improper
closing arguments requires a two-step analysis. First, we must determine whether the
prosecutor's comments were outside the wide latitude that the prosecutor is allowed in
discussing the evidence. Second, if misconduct is found, we must determine whether the
improper comments constitute plain error; that is, whether the statements prejudiced the
jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan.
840, 850, 270 P.3d 1115 (2012).


       Marshall alleges four different categories of misconduct in the prosecutor's closing
argument. He claims that the prosecutor: (1) gave her personal opinion of Marshall's
guilt; (2) improperly commented on Marshall's postarrest silence in violation of Doyle v.
Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d. 91 (1976); (3) inflamed the passions of
the jury; and (4) crafted a speculative narrative of the events that included facts not in
evidence. We will examine each of these claims in turn.


Personal Opinion of Guilt


       "Prosecutors must not state a personal opinion regarding the ultimate guilt or
innocence of the defendant." State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006).
Marshall contends that the prosecutor twice gave her personal opinion of Marshall's guilt.
First, at the conclusion of her closing argument when she stated: "Ladies and Gentlemen,

                                              8
something happened on February 28th of 2012; and that something was rape." Second,
when she wrapped up the rebuttal portion of closing arguments by again saying: "Jamie
Marshall raped [A.M.] That's the something that happened."


       Marshall relies on State v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012). In
Peppers, the following comment in closing was deemed to fall outside the wide latitude
afforded a prosecutor when discussing the evidence: "I'm going to ask that you find this
defendant, Antwan Peppers, guilty of murder in the first degree and guilty of attempted
murder in the first degree. Why? Because he did it." 294 Kan. at 399. Our Supreme Court
held that while a prosecutor is permitted to state that the defendant committed the crime,
such statements must be accompanied by language directing the jury to consider the
evidence supporting the State's charge. This context renders such statements "merely
directional and not an expression of the prosecutor's personal opinion." 294 Kan. at 399-
400.


       The State argues that the prosecutor's statements in this case were so couched in a
discussion of the evidence as to have been merely directional. The State points to State v.
Bennington, 293 Kan. 503, 264 P.3d 440 (2011), as an analogous case. There, the
prosecutor made the following argument: "I want to stand here right now and ask you,
don't find him guilty of attempted rape. Find him guilty of rape. That's what he did." 293
Kan. at 530. The Bennington court held:


               "Viewed in isolation, 'That's what he did,' sounds like a personal opinion. But
       when placed in context, this statement is not outside the wide latitude allowed attorneys
       during argument. The statement was made during the prosecutor's explanation of the
       elements of attempted rape. . . .


               ". . . A review of the entire statement shows that the prosecutor was accurately
       describing the evidence and relating it to the elements of attempted rape versus rape, and
       the statement, 'That's what he did,' was relating the facts to those elements. A prosecutor

                                                    9
       has wide latitude to craft arguments that include reasonable inferences to be drawn from
       the evidence." 293 Kan. at 530-31.


       During one of the recorded phone conversations between Marshall and Misner that
was played to the jury, Misner can be heard telling Marshall that "something happened"
on the night of February 28. The prosecutor drew the motif of her closing argument from
Misner's statement. She began by saying, "Something happened, something happened on
February 28th of 2012." The prosecutor proceeded to thoroughly argue the evidence in
support of the State's charge, including A.M.'s statements; the physical evidence,
including DNA evidence; Valadez's testimony regarding Marshall's incriminating
statements; and the evidence undermining Marshall's version of events. The prosecutor
further correctly stated and clearly explained the State's burden of proof and the elements
of the crime. At the conclusion of this recitation, the prosecutor echoed her earlier
statement by saying, "Ladies and Gentlemen, something happened on February 28th of
2012, and that something was rape."


       The statements Marshall claims were impermissible prosecutorial expressions of
personal belief were sufficiently couched in a discussion of the evidence to be merely
directional. As such, they do not fall outside the wide latitude a prosecutor is afforded to
craft arguments drawn from the evidence.


The Alleged Doyle Violation


       Marshall next argues that the State committed a Doyle violation by allegedly
arguing guilt based on his postarrest silence.


       "A Doyle violation occurs when the State attempts to impeach a defendant's credibility at
       trial by arguing or by introducing evidence that the defendant did not avail himself or
       herself of the first opportunity to clear his or her name when confronted by police officers


                                                   10
       but instead invoked his or her constitutional right to remain silent." State v. Edwards, 264
       Kan. 177, 195, 955 P.2d 1276 (1998).


       Marshall points to the following passage in the State's closing argument:


               "First, the defendant tries to tell [Valadez] this is some big conspiracy, Caring
       Hands owes me money, they're making all this up. Then he says, State ain't got no
       evidence, there wasn't enough penetration. . . . He gets more comfortable [with] Mr.
       Valadez and eventually says, 'I used my hands. I used my hands.'


               ". . . The defendant never mentioned anything about a medically necessary
       procedure that he had to perform on [A.M.]. In fact, the defendant doesn't mention that to
       anyone. That doesn't arise until after all of the police reports are in and the DNA testing
       is complete. Then he realizes, uh-oh, DNA is back. The State does have evidence."


       Rather than a comment on Marshall's silence, it is apparent that here the State is
using the incriminating statements made to Valadez to impeach Marshall's claim that he
performed a medically necessary procedure on A.M. Both versions of the events cannot
be true. Drawing the jury's attention to this fact is not a Doyle violation. When a
defendant takes the stand, "his credibility may be impeached and his testimony assailed
like that of any other witness." Brown v. U.S., 356 U.S. 148, 154, 78 S. Ct. 622, 2 L. Ed.
2d 589 (1958).


       Likewise, Doyle does not prohibit a prosecutor from impeaching a defendant at
trial based on his or her prearrest silence. State v. Tully, 293 Kan. 176, 188, 262 P.3d 314
(2011). The State had elicited testimony from Marshall that when he spoke to the director
of Caring Hands and other Caring Hands employees following the incident, he did not
claim to any of them that he had merely applied medical cream to A.M.'s rash. These
conversations occurred prior to Marshall's arrest. The context makes it clear that these are



                                                    11
the conversations the State was referring to when the prosecutor said, "[T]he defendant
doesn't mention that to anyone." The State did not commit a Doyle violation.


Inflaming the Passions of the Jury


       Marshall next contends the State improperly inflamed the passions of the jury
when the prosecutor argued that Marshall "hurt [A.M.] and he didn't say, 'I'm sorry.'
[A.M.] lets him know she's upset, she's really upset." Marshall acknowledges that A.M.
did indicate that she was upset that Marshall did not apologize for hurting her. Marshall
argues, however, that the only possible reason for the State to draw the jury's attention to
this piece of evidence was to elicit sympathy for A.M. and outrage toward Marshall. We
are not convinced.


       Rather, the prosecutor was reciting a statement directly from the evidence which
demonstrated that A.M., a developmentally disabled adult with limited articulation
capacity, was genuinely upset and disturbed by what had happened to her—important
evidence for the jury to consider. Further, the prosecutor highlighted this portion of the
trial testimony to draw the inference that A.M.'s disturbed emotional state triggered
Marshall's ultimate efforts to flee the state—again, a permissible inference from the
evidence. The State did not inflame the passions of the jury.


Creating a Speculative Narrative Lacking Evidentiary Basis


       For his last claim of misconduct, Marshall contends that the State impermissibly
created a speculative narrative lacking an evidentiary basis. Marshall cites to the
following portions of the prosecutor's closing argument:




                                             12
       "The defendant got [A.M.] alone in her room where it's just him and [A.M.], the
       developmentally disabled girl who he doesn't believe will ever be able to articulate what
       happened.


               "He gets her on her bed. He gets pink lotion, . . . not this medicated cream that
       was used to treat the rash weeks earlier. He gets pink lotion. He uses it as a lubricant and
       he penetrates [A.M.]'s genitals. Unexpectedly, [A.M.] tells him to stop. He didn't stop,
       though, he continued to do it. He penetrated her genitals causing an injury. You saw that
       injury in the State's exhibits. He hurt [A.M.] and he didn't say, 'I'm sorry.'


               "[A.M.] lets him know she's upset, she's really upset. And he realizes that [A.M.]
       is going to be able to say what happened. So what does the defendant do? He calls Emma
       [White]. He needs to figure out when the other caretakers are getting back. You heard
       Ms. White's testimony, he called me and said what time are we going to get back. When
       he gets an iffy response from Miss White, I don't know when we'll be back, he realizes he
       can't risk leaving [A.M.] there while he gets money to get out of town. He can't risk that.
               ....


               ". . . There are certainly a lot of things that we all would like to know. What
       exactly did he poke you with? Can't get that out of her. His poker. Can't get that out of
       her because she didn't see it."


       Marshall argues that the prosecutor improperly argued facts not in evidence by
creating an "imaginary script" describing both Marshall's thoughts and what A.M. didn't
see.


       In closing arguments a prosecutor must confine his or her comments to matters in
evidence. State v. Morris, 40 Kan. App. 2d 769, 791, 196 P.3d 422 (2008). In Morris, this
court held that it is improper for a prosecutor to speculate as to the internal thought
processes of witnesses. Morris, 40 Kan. App. 2d at 791. However, prosecutors are given
wide latitude to craft arguments that include inferences that can reasonably be drawn
from the evidence. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). In this

                                                     13
instance, the prosecutor's comments fall into this latter category of reasonable inferences
drawn from the evidence.


       There was substantial testimony presented at trial regarding A.M.'s verbal
deficiencies. Vocabulary testing placed her in the first percentile. Marshall admitted that
he was aware of A.M.'s serious disabilities. The prosecutor's comment that Marshall
"doesn't believe [A.M.] will ever be able to articulate what happened" was a reasonable
inference drawn from the evidence. The State's further argument that after A.M. became
upset, Marshall "realizes that [A.M.] is going to be able to say what happened" and thus
he "realizes he can't risk leaving [A.M.] there while he gets money to get out of town" is
also a reasonable inference drawn from the evidence. White testified that Marshall's only
reason for his call to her following the rape was to find out what time she would return.
Misner testified that Marshall did not ask for money until after the rape had occurred.
Given Marshall's knowledge of A.M.'s serious disabilities, her articulation of distress
following the rape, and Marshall's conversations with White and Misner, it is reasonable
to infer that Marshall took A.M. with him to his apartment in order to prevent A.M. from
making any disclosures until after Marshall had an opportunity to flee the state.


       Likewise, there was substantial evidence that Marshall utilized pink lotion during
the act of digital penetration. The prosecutor's statement—that Marshall "gets pink lotion,
. . . not this medicated cream that was used to treat the rash weeks earlier . . . [and] [h]e
uses it as a lubricant and he penetrates [A.M.]'s genitals"—was again a reasonable
inference drawn from the evidence.


       Finally, Marshall objects to the State's statement that A.M. "didn't see" what
Marshall "poked" her with. A.M. was asked at trial about what was used to "poke" her.
She answered "a poker" but could not articulate further. A.M. testified that she was lying
down and Marshall was standing up in front of her when the penetration occurred. The
State's argument came during rebuttal after Marshall's counsel had argued in his closing

                                              14
that A.M. had been coached and was not credible, in part because she could not articulate
what Marshall had "poked" her with. "Prosecutors have wide latitude . . . to craft
arguments that include reasonable inferences to be drawn from the evidence. That
latitude includes explaining to juries what they should look for in assessing witness
credibility, especially when the defense has attacked the credibility of the State's
witnesses." State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). Immediately
after the portion of the State's argument Marshall objects to, the prosecutor concluded:
"When you look at [A.M.], you have to think, would a 5-year-old child relay what
happened to them? How would they be able to describe this? He poked her." Given
A.M.'s verbal deficiencies, given her position lying down while Marshall stood over her,
and given the defense efforts to undermine A.M.'s credibility, the prosecutor's
rehabilitation of A.M.'s testimony was limited to reasonable inferences drawn from the
evidence and was not outside the wide latitude afforded the State in closing arguments.


       Because we find that none of the alleged instances of misconduct falls outside the
wide latitude afforded the State when discussing the evidence, we need not conduct a
plain error analysis. The State did not commit reversible misconduct during its closing
arguments.


               FAILURE TO ALLEGE AGGRAVATING FACTOR IN COMPLAINT


       Next, Marshall argues that his due process rights were violated when his sentence
was increased due to an aggravating factor not alleged in the criminal complaint against
him. We apply a de novo standard of review to constitutional questions. State v. Kirtdoll,
281 Kan. 1138, 1151, 136 P.3d 417 (2006).


       Kansas law permits the State to file a motion for an upward departure after a
criminal complaint is filed:


                                             15
                 "(b)(1) Upon motion of the county or district attorney to seek an upward
      durational departure sentence, the court shall consider imposition of such upward
      durational departure sentence in the manner provided in subsection (b)(2). The county or
      district attorney shall file such motion to seek an upward durational departure sentence
      not less than 30 days prior to the date of trial or if the trial date is to take place in less
      than 30 days then within seven days from the date of the arraignment.


                 "(2) The court shall determine if the presentation of any evidence regarding the
      alleged fact or factors that may increase the penalty for a crime beyond the statutory
      maximum, other than a prior conviction, shall be presented to a jury and proved beyond a
      reasonable doubt during the trial of the matter or whether such evidence should be
      submitted to the jury in a separate departure sentencing hearing following the
      determination of the defendant's innocence or guilt." K.S.A. 2013 Supp. 21-6817(b)(1)
      and (2).


      Here, the State followed this procedure and filed a motion putting Marshall on
notice that it intended to seek an upward departure on the grounds that the "offense
involved a fiduciary relationship which existed between the defendant and the victim."
The motion was filed nearly 5 months prior to trial. The alleged aggravating factor was
submitted to the jury and found beyond a reasonable doubt, resulting in the enhanced
sentence imposed on Marshall by the district court.


      Marshall argues that despite the State's compliance with the provisions of the
Kansas Criminal Code, the notice he received was nonetheless constitutionally deficient.
Marshall stakes his argument on United States Supreme Court decisions holding that any
aggravating factor subjecting the defendant to an enhanced sentence must be charged in
the indictment and proved to a jury beyond a reasonable doubt. See Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Jones v. United States,
526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d. 311 (1999).




                                                      16
       Whether the notice requirements of K.S.A. 2013 Supp. 21-6817(b)(1) satisfy
constitutional due process presents a question of first impression to this court. We are
guided, however, by our Supreme Court's decision in State v. Scott, 286 Kan. 54, 183
P.3d 801 (2008), a case with facts directly analogous to those in front of us. The State had
charged Scott with capital murder and subsequently provided notice of intent to seek the
death penalty based on certain aggravating factors.


               "Scott contends the notice provisions provided for in K.S.A. 21-4624(a) are
       unconstitutional because they do not require the State to specify the aggravating factors
       in the information. K.S.A. 21-4624(a) states:


                       'If a defendant is charged with capital murder, the county or
               district attorney shall file written notice if such attorney intends, upon
               conviction of the defendant, to request a separate sentencing proceeding
               to determine whether the defendant should be sentenced to death. Such
               notice shall be filed with the court and served on the defendant or the
               defendant's attorney not later than five days after the time of arraignment.
               If such notice is not filed and served as required by this subsection, the
               county or district attorney may not request such a sentencing proceeding
               and the defendant, if convicted of capital murder, shall be sentenced to
               life without the possibility of parole, and no sentence of death shall be
               imposed hereunder.'


       Scott argues that under Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed.
       2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
       435 (2000), aggravating factors, as elements of the offense, must be set forth in the
       charging document.


               "Scott's argument is not persuasive. Jones and Apprendi both stand for the
       proposition that, under the grand jury provision of the Fifth Amendment and the notice
       and jury trial provision of the Sixth Amendment, any fact other than a prior conviction
       that increases the maximum penalty for a crime must be charged in an indictment,
       submitted to a jury, and proven beyond a reasonable doubt. However, Scott fails to

                                                    17
       recognize that the requirement that such facts be charged in an indictment only applies in
       federal cases, as the Fifth Amendment's grand jury provision does not apply to the states
       through the Fourteenth Amendment. See Ring v. Arizona, 536 U.S. at 597 n.4; Apprendi,
       530 U.S. at 477 n.3; Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 28 L. Ed.
       232 (1884)." Scott, 286 Kan. at 101-02.


       Marshall asserts the same failed argument made by the defendant in Scott.
Because the Fifth Amendment's grand jury provision does not apply to Kansas, the only
question is whether the notice provisions of K.S.A. 2013 Supp. 21-6817 comport with the
Sixth Amendment. "The Sixth Amendment requires only that the defendant be given
'notice and an opportunity to respond.' [Citation omitted]. Such '[n]otice must be
sufficient to make the opportunity useful.' [Citation omitted]." Scott, 286 Kan. at 102.
The Scott court concluded that the statutory notice provisions concerning the death
penalty—requiring notice that the State intended to seek the death penalty no later than 5
days following arraignment and requiring notice of the specific aggravating factor
required prior to sentencing—was sufficient to satisfy the minimum notice requirements
of the Sixth Amendment. 286 Kan. at 102.


       K.S.A. 2013 Supp. 21-6817(b)(1) requires the State to provide notice that it
intends to seek an upward sentencing departure and to provide information to the court
regarding "the alleged fact or factors that may increase the penalty" no less than 30 days
prior to trial, or 7 days from the arraignment if the trial is to take place in less than 30
days. Applying Scott, we are convinced that these notice provisions are sufficient to
satisfy the requirements of the Sixth Amendment. The fact that Marshall received actual
notice of both the State's intent and the aggravating factor the State would allege nearly 5
months prior to trial serves to illustrate the effectiveness of the Kansas notice provisions.
Marshall was not denied his due process rights.




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                           APPRENDI SENTENCING CHALLENGE


       Finally, Marshall claims the district court violated his Sixth and Fourteenth
Amendment rights as articulated by Apprendi when it imposed an increased sentence
based on his prior criminal history without requiring the State to prove that criminal
history beyond a reasonable doubt to a jury.


       The interpretation of a sentencing statute is a question of law. Thus, our standard
of review over Marshall's claim is unlimited. See State v. Jolly, 291 Kan. 842, 845-46,
249 P.3d 421 (2011). Additionally, the constitutionality of a sentencing statute is a
question of law subject to unlimited appellate review. State v. Riojas, 288 Kan. 379, 388,
204 P.3d 578 (2009).


       Marshall concedes that the Kansas Supreme Court has decided this issue against
him. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court is duty bound
to follow Kansas Supreme Court precedent absent some indication that the court is
departing from its previous position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264
P.3d 1027 (2011), review denied 294 Kan. 946 (2012). There is no indication that the
Kansas Supreme Court is departing from its holding in Ivory. As such, we conclude the
district court did not violate Apprendi when it considered Marshall's criminal history
without requiring that it be proven beyond a reasonable doubt to a jury.


       Affirmed.




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