                                         No. 112,003

            IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                   STATE OF KANSAS,
                                       Appellee,

                                             v.

                              CHRISTOPHER J. KIMBERLIN,
                                     Appellant.


                              SYLLABUS BY THE COURT

1.
      Interpretation of a sentencing statute is a question of law over which an appellate
court has unlimited review.


2.
      In multiple conviction cases where all the sentences are imposed using the drug
grid or where all the sentences are imposed using the nondrug grid, K.S.A. 2014 Supp.
21-6819(b)(2) requires the sentencing judge to designate the crime with the highest crime
severity ranking as the primary crime.


3.
      In multiple conviction cases that require sentencing under both the drug grid and
the nondrug grid and simultaneously having a presumption of imprisonment and
probation, K.S.A. 2014 Supp. 21-6819(b)(2) requires the sentencing judge to use the
crime which presumes imprisonment as the primary crime.




                                             1
4.
       In multiple conviction cases that require sentencing with both the drug grid and
the nondrug grid and simultaneously having a presumption of either both probation or
both imprisonment, K.S.A. 2014 Supp. 21-6819(b)(2) requires the sentencing judge shall
use the crime with the longest sentence term as the primary crime.


5.
       A special rule in K.S.A. 2014 Supp. 21-6805(f)(1) requires the sentencing court to
impose a sentence of prison when the defendant is convicted of a third or subsequent
felony for possession of a controlled substance or controlled substance analog.


6.
       In multiple conviction cases, the sentencing court first must apply the special rule
in K.S.A. 2014 Supp. 21-6805(f)(1) to any third or subsequent conviction for possession
of a controlled substance before designating the primary crime to be used in calculating
the base and nonbase sentences under K.S.A. 2014 Supp. 21-6819(b)(2).


7.
       A sentence is effective when pronounced from the bench; a sentence in a criminal
case does not derive its effectiveness from the journal entry. A journal entry that imposes
a sentence at variance with the sentence pronounced from the bench is erroneous and
must be corrected to reflect the actual sentence imposed.


8.
       The rules governing appellate review of a prosecutorial misconduct claim are
discussed and applied.




                                             2
9.
        The rules governing appellate review of a jury instruction to which the defendant
objected at trial are discussed and applied.


        Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed November 6, 2015.
Affirmed in part, vacated in part, and remanded with directions


        Heather Cessna, of Kansas Appellate Defender Office, for appellant.


        Sarah E. Washburn, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.


        STANDRIDGE, J.: Christopher J. Kimberlin appeals following his convictions of
aggravated battery and various drug crimes. Stated generally, Kimberlin challenges the
manner in which his felony sentences were calculated, the accuracy of the court's journal
entry, the propriety of a comment made by the prosecutor in closing argument, one of the
instructions given to the jury, and the use of his criminal history to calculate his sentence.
For the reasons stated below, we agree that Kimberlin's felony sentences were improperly
calculated and therefore must be vacated and remanded for resentencing. We also agree
that the journal entry is inaccurate because it fails to reflect the sentence announced at the
sentencing hearing. Nevertheless, we find no merit in Kimberlin's claims of prosecutorial
misconduct, erroneous jury instructions, and use of criminal history in sentencing.


                                                 FACTS

        On the evening of March 23, 2013, Emporia Police Officer John Jeffery was
dispatched to a residence for a possible domestic battery. Upon arrival, Jeffery met with
Misti Tucker, who was standing outside and crying. Tucker lived at the residence with



                                                    3
Kimberlin, her boyfriend. Tucker reported that Kimberlin had dragged her across the
floor by her throat and choked her from behind. Jeffery observed faint red marks on
Tucker's neck that he later identified as consistent with strangulation. Tucker also advised
that there were illegal drugs belonging to Kimberlin inside the residence. She gave
Jeffery permission to enter, but the door was locked, and Tucker, who had left in a rush,
had no way to let Jeffery inside. As a result, Jeffery obtained a search warrant for the
residence; a subsequent search revealed drugs and numerous items of drug paraphernalia.


       The State charged Kimberlin with one count each of aggravated battery,
possession of methamphetamine, possession of marijuana, possession of drug
paraphernalia, possession of Psilocyn, and possession of Alprazolam.


       At trial, Tucker testified that she and Kimberlin had both been drinking on the day
in question and that Kimberlin had also used methamphetamine. She stated that they
argued off and on all day before the argument escalated into physical violence later that
evening. Tucker claimed that Kimberlin had hit, pushed, and choked her to a point where
she could not breathe. Tucker also claimed that Kimberlin took her phone and broke her
glasses. According to Tucker, Kimberlin was very controlling and often reminded her
that everything in the house belonged to him and that she could only use things in the
house when he gave her permission to do so.


       Kimberlin's version of events differed from Tucker's. Kimberlin testified that after
waking from a nap on March 23, he found some drug paraphernalia in the house.
Kimberlin claimed he told Tucker that she needed to get her things and leave because he
did not allow drugs in his house. He denied touching, harming, or threatening Tucker,
other than telling her that she needed to leave. Kimberlin stated that Tucker was upset
because she did not have anywhere else to go. Kimberlin testified that he called his
friend, Tom Noyce, to pick him up. As he was leaving, Kimberlin claimed that Tucker
stated, "'You're going to jail.'" According to Kimberlin, he and Noyce went to the grocery


                                             4
store and then spent the night at Noyce's house. Kimberlin testified that he did not return
home or have any further contact with Tucker that night. Kimberlin claimed that Tucker
had full access to everything in the house, denied knowledge of any of the drugs or drug
paraphernalia collected by the police, and maintained that the items did not belong to
him.


       Noyce testified that Kimberlin called him for a ride and was mad because he found
drug paraphernalia in the house. Noyce stated that after he and Kimberlin went to the
grocery store, they went to his house and stayed there the rest of the night. As far as
Noyce knew, Kimberlin did not leave until the next day.


       The district court granted Kimberlin's motion for judgment of acquittal for the
possession of Alprazolam charge. The jury convicted Kimberlin on all remaining
charges. The district court sentenced him to a controlling term of 42 months'
imprisonment. Kimberlin timely appeals.


                                          ANALYSIS

       Kimberlin raises the following issues on appeal: (1) the district court erroneously
calculated his felony sentences, (2) the journal entry of judgment does not accurately
reflect the misdemeanor sentences pronounced by the district court, (3) the prosecutor's
comments during closing argument deprived him of his constitutional right to a fair trial,
(4) the district court erred in giving the jury a deadlocked jury instruction, and (5) the
district court improperly enhanced his sentence based on his criminal history. Each of
these allegations is addressed in turn.




                                              5
Sentencing

       Kimberlin argues the district court erred in calculating his felony sentences.
Specifically, Kimberlin contends the district court erroneously designated aggravated
battery as the primary crime when the court sentenced him. In the alternative, Kimberlin
alleges the court erred by imposing a prison sentence for his aggravated battery
conviction instead of imposing the presumptive sentence of probation.


       Resolving the issue presented by Kimberlin requires interpretation of the relevant
provisions of the Kansas Sentencing Guidelines Act. Interpretation of a sentencing statute
is a question of law over which an appellate court has unlimited review. See State v.
Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014).


       K.S.A. 2014 Supp. 21-6819(b)(2), which governs sentencing in multiple
conviction cases, states that the sentencing judge "shall establish a base sentence for the
primary crime." The primary crime is generally the one with the highest crime severity
ranking. But in cases like Kimberlin's, which involve both the drug grid and the nondrug
grid, this particular subsection of the statute goes on to provide:


       "In the instance of sentencing with both the drug grid and the nondrug grid and
       simultaneously having a presumption of imprisonment and probation, the sentencing
       judge shall use the crime which presumes imprisonment as the primary crime. In the
       instance of sentencing with both the drug grid and the nondrug grid and simultaneously
       having a presumption of either both probation or both imprisonment, the sentencing
       judge shall use the crime with the longest sentence term as the primary crime." K.S.A.
       2014 Supp. 21-6819(b)(2).


The base sentence is set using the total criminal history score assigned. K.S.A. 2014
Supp. 21-6819(b)(3). All remaining crimes are nonbase sentences calculated in the




                                                   6
criminal history category I column of the sentencing grid. K.S.A. 2014 Supp. 21-
6819(b)(5).


       The jury in this case convicted Kimberlin of the following felony charges:


            Count 1, aggravated battery, a severity level 7 person felony;
            Count 2, possession of methamphetamine, a severity level 5 drug felony;
              and
            Count 4, possession of marijuana, a severity level 5 drug felony.


Kimberlin's criminal history score was established, without objection, as E. As a result,
the presumptive sentence on the applicable sentencing grid for all three of these felony
offenses was probation. See K.S.A. 2014 Supp. 21-6804 and 21-6805. Because Counts 2
and 4 involved Kimberlin's third or subsequent felony drug possession conviction,
however, a special rule set forth in K.S.A. 2014 Supp. 21-6805(f)(1) mandated a
presumptive prison sentence for these two particular offenses.


       The presentence investigation (PSI) report listed aggravated battery as the primary
crime. Despite the fact that the applicable grid box in the sentencing guidelines indicated
that the presumptive sentence for aggravated battery was probation, the PSI report
prepared for the court designated the offense of aggravated battery as presumptive prison
due to the special rule set forth in K.S.A. 2014 Supp. 21-6805(f)(1). The PSI report also
designated the drug possession offenses in Counts 2 and 4 to be presumptive prison
sentences pursuant to the special rule in K.S.A. 2014 Supp. 21-6805(f)(1). Finally, the
PSI report indicated that Kimberlin was not eligible for drug treatment as set forth in that
statute.


       Prior to sentencing, Kimberlin filed a motion for departure, requesting both a
dispositional departure to probation as well as a durational departure. At the sentencing

                                             7
hearing, the prosecutor expressed confusion as to why the PSI report listed aggravated
battery as a presumptive prison offense when the special rule in K.S.A. 2014 Supp. 21-
6805(f)(1) applied only to Kimberlin's felony drug possession convictions. The State
ultimately deferred to the district court on the issue. Thereafter, the district court denied
Kimberlin's departure motion and imposed consecutive prison sentences for each of the
three felony convictions. In doing so, the court designated Count 1, aggravated battery, as
the primary crime and imposed a 21-month prison sentence. Next, the court sentenced
Kimberlin to 11-month prison terms on Counts 2 and 4. The court noted the applicability
of the special rule requiring a prison sentence be imposed on Kimberlin's felony drug
convictions but stated that the rule "does not necessarily apply to Count No. 1." All told,
Kimberlin received a 42-month prison sentence, decreased from 43 months pursuant to
the "double rule" set forth in K.S.A. 2014 Supp. 21-6819(b)(4).


       Kimberlin first argues the district court erred in designating aggravated battery as
the primary crime. In support of this argument, Kimberlin relies on K.S.A. 2014 Supp.
21-6819(b)(2), which provides in relevant part that, when a sentence makes use of both
the drug grid and the nondrug grid with simultaneous presumptions of imprisonment and
probation, the sentencing judge must designate as the primary offense the crime
presuming imprisonment. Noting that the presumptive sentence for aggravated battery
was probation, Kimberlin claims either Count 2 or 4, both of which were presumptive
imprisonment crimes pursuant to the special rule in K.S.A. 2014 Supp. 21-6805(f)(1),
should have been designated the primary crime.


       Preliminarily, the State argues that not only did Kimberlin fail to raise this issue
below, but defense counsel actually asked the court at the sentencing hearing to designate
aggravated battery as the primary crime. Generally, a litigant may not invite error and
then complain of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046
(2014). Nevertheless, Kimberlin argues that we may consider this issue for the first time
on appeal because the sentence fails to comply with K.S.A. 2014 Supp. 21-6819, thereby


                                               8
rendering it illegal. See State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005) (defining
an illegal sentence in part as "one that does not conform to the statutory provisions, either
in the character or the term of the punishment authorized"). Kansas law clearly provides
that a defendant cannot agree to an illegal sentence. State v. Weber, 297 Kan. 805, 815,
304 P.3d 1262 (2013). In fact, K.S.A. 22-3504(1) specifically authorizes a court to
"correct an illegal sentence at any time." "This language has generally been interpreted to
mean that 'an illegal sentence issue may be considered for the first time on appeal.'
[Citation omitted.]" State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).
Therefore, we may reach the merits of Kimberlin's argument.


       In response to the merits of Kimberlin's argument, the State alleges the district
court properly designated aggravated battery as the primary crime pursuant to the last
sentence of K.S.A. 2014 Supp. 21-6819(b)(2), which provides: "In the instance of
sentencing with both the drug grid and the nondrug grid and simultaneously having a
presumption of either both probation or both imprisonment, the sentencing judge shall
use the crime with the longest sentence term as the primary crime." According to the
State, this portion of the statute is applicable because (1) prior to application of the
special rule set forth in K.S.A. 2014 Supp. 21-6805(f)(1), the presumptive sentence for all
three of Kimberlin's felony convictions was probation according to their respective
sentencing grids and (2) aggravated battery had a longer sentence term than the drug
crimes. For the reasons stated below, however, we are not persuaded that the statutory
language quoted by the State is applicable to the facts presented here.


       The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075,
1079, 319 P.3d 528 (2014). When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind that clear language, and it should
refrain from reading something into the statute that is not readily found in its words. State
v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Kimberlin's criminal history score was


                                               9
E. He was convicted in Count 1 of aggravated battery, a severity level 7 felony. The
presumed nondrug guidelines sentence for Count 1 was probation, with a sentencing
range of 19-21-23 months. See K.S.A. 2014 Supp. 21-6804. Kimberlin's felony drug
possession convictions in Counts 2 and 4 were both severity level 5 felonies. With a
criminal history score of E, the presumed drug guidelines sentence for each count was
probation, with a sentencing range of 18-20-22 months. See K.S.A. 2014 Supp. 21-6805.


       Because Counts 2 and 4 involved Kimberlin's third or subsequent felony drug
possession convictions, however, application of the special rule set forth in K.S.A. 2014
Supp. 21-6805(f)(1) was triggered. This special rule provides that the presumptive
sentence for a third or subsequent felony drug possession conviction is prison. The sixth
sentence of K.S.A. 2014 Supp. 21-6819(b)(2) states that "[i]n the instance of sentencing
with both the drug grid and the nondrug grid and simultaneously having a presumption of
imprisonment and probation, the sentencing judge shall use the crime which presumes
imprisonment as the primary crime." In this case, Kimberlin was convicted of a nondrug
crime that had a presumptive probation sentence and two drug crimes that had
presumptive imprisonment sentences. The fact that Counts 2 and 4 are listed on the drug
grid as presumptive probation sentences when the special rule in K.S.A. 2014 Supp. 21-
6805(f)(1) does not apply is irrelevant to the facts presented here.


       For the reasons stated above, we conclude the district court erred in designating
aggravated battery, which had a presumptive sentence of probation, as the primary crime.
As a result, Kimberlin's felony sentences must be vacated and remanded for resentencing.
Given our conclusion in this regard, we find it unnecessary to address Kimberlin's
alternative argument that the district court erred in imposing a prison sentence for his
aggravated battery conviction.




                                             10
Journal entry

       Kimberlin argues the journal entry of judgment must be corrected because it
erroneously reflects that the district court ordered his misdemeanor sentences to run
consecutively, rather than concurrently. The State concedes this error.


       Kimberlin correctly notes that the district court stated at the sentencing hearing
that his 12-month jail sentences in Counts 7 and 9 were to run concurrently. The journal
entry of judgment also indicates, under the section specific to each count, that Kimberlin
received a 12-month jail sentence on each count, to run concurrently with all other
charges. But the "Recap of Sentence" section of the journal entry reflects that Kimberlin
received a 24-month jail sentence as a result of his two misdemeanor convictions.


       A sentence is effective when pronounced from the bench; a sentence in a criminal
case does not derive its effectiveness from the journal entry. A journal entry that imposes
a sentence at variance with the sentence pronounced from the bench is erroneous and
must be corrected to reflect the actual sentence imposed. State v. Mason, 294 Kan. 675,
677, 279 P.3d 707 (2012). Accordingly, the journal entry of judgment must be corrected
upon resentencing so that it reflects the actual misdemeanor sentence pronounced from
the bench.


Prosecutorial misconduct

       Kimberlin argues that the prosecutor engaged in misconduct by making a
comment during closing argument that improperly appealed to the jurors' sympathies.


       Appellate review of a prosecutorial misconduct claim based on improper
comments requires a two-step analysis. First, an appellate court decides whether the
comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when



                                             11
discussing evidence. If so, there was misconduct. If misconduct is found, the second step
requires the appellate court to determine whether the improper comments prejudiced the
jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan.
989, 1012, 306 P.3d 244 (2013).


       Appellate courts consider three factors in analyzing the second step: (1) whether
the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the
prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the jurors' minds. But
none of these factors individually controls; and before the third factor can override the
first two, an appellate court must be able to say the harmlessness tests of both K.S.A.
2014 Supp. 60-261 and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990, 270 P.3d 1142
(2012).


       During closing arguments, the prosecutor stated, "Mr. Kimberlin controlled that
house. And I ask you to not let him get away with controlling Ms. Tucker through your
verdict." Kimberlin argues that this particular comment wrongly asked the jury to
consider factors outside of his guilt when deliberating the charges against him by making
the jury feel a sense of responsibility to protect Tucker from any further victimization by
him. Conversely, the State asserts that the statement was a legitimate comment on the
evidence presented at trial relating to Kimberlin's ongoing assertion of control.


       In the interest of judicial economy, we will assume—without deciding—that the
prosecutor's statement requesting the jury not allow Kimberlin to "get away with
controlling" Tucker was an impermissible attempt to engender sympathy towards Tucker
that diverted attention from the jury's function of determining guilt based on the
evidence. Because we are assuming the statement was outside the wide latitude a
prosecutor is allowed, the question presented is whether the statement made by the


                                             12
prosecutor requires reversal, i.e., "whether the improper comments prejudiced the jury
and denied the defendant a fair trial." Bridges, 297 Kan. at 1012. In order to make that
decision, we must determine whether the misconduct was gross and flagrant, whether it
was motivated by ill will, and whether the evidence was so overwhelming that the
improper comment would have little weight in the jurors' minds. 297 Kan. at 1012.


       As to whether the prosecutor's statement was gross and flagrant, we consider
whether the comment ultimately deprived defendant of a fair trial, whether the comment
was repeated or emphasized, and whether the comment violated a long-standing or clear
and unequivocal rule designed to protect a constitutional right. State v. Marshall, 294
Kan. 850, Syl. ¶ 6, 281 P.3d 1112 (2012). In this case, the prosecutor's comment was
brief and not repeated. And we find nothing in the record from which to conclude that the
prosecutor deliberately made the comment knowing it was improper or that the
prosecutor violated a clear and unequivocal rule designed to protect a constitutional right.


       As to whether the comment was motivated by ill will, we consider whether the
misconduct was deliberate, repeated, or in an apparent indifference to a court ruling. See
Bridges, 297 Kan. at 1016. We have reviewed the record and find no evidence that the
statement made by the prosecutor was motivated by ill will. More specifically, there was
only one instance of misconduct; the prosecutor did not persist with the statement or
show indifference to a court admonishment to cease; and there was no suggestion that the
prosecutor mocked Kimberlin in making the statement.


       We finally consider whether the evidence was so direct and overwhelming that the
improper comment would have had little weight in the jurors' minds. The State bears the
burden of demonstrating harmless error. State v. Akins, 298 Kan. 592, 612, 315 P.3d 868
(2014). To satisfy its burden, the State must convince the court, beyond a reasonable
doubt, that there is no reasonable possibility the misconduct affected the jury's verdict. To
meet this burden, the State argues that the evidence against Kimberlin was significant.


                                             13
Although the evidence in this case hinged entirely on the credibility of Tucker's
testimony, her testimony constitutes direct evidence supporting the jury's guilty verdicts.
Considering the lack of prosecutorial ill will and the fleeting nature of the comment, we
conclude the State has satisfied its burden to demonstrate that there is no reasonable
possibility the misconduct affected the trial's outcome in light of the entire record.


Jury instruction

       Kimberlin argues the district court erred in giving the jury a deadlocked
instruction, along with the other instructions, before jury deliberations began.
Specifically, he claims that the instruction was misleading and impermissibly allowed the
jury to consider what might happen to the case after trial.


       When analyzing jury instruction issues, an appellate court follows 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 the error requires reversal, i.e., whether the error can be deemed
       harmless." State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).


Kimberlin objected to the instruction at issue here. Consequently, we will reverse if we
find an error and conclude that there is a "reasonable probability" that the error affected
the outcome of the trial in light of the entire record. State v. Ward, 292 Kan. 541, 565,
569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).


       Prior to the instructions conference, the district court asked the jurors whether they
would be willing to stay and deliberate later that evening in light of the potential for bad
weather. The jurors indicated their agreement to do so. At the instructions conference, the


                                                     14
district court proposed the following instruction, which is identical to PIK Crim. 4th
68.140 (2013 Supp.):


                "Like all cases, this is an important case. If you fail to reach a decision on some
       or all of the charges, that charge or charges are left undecided for the time being. It is
       then up to the state to decide whether to resubmit the undecided charge(s) to a different
       jury at a later time.
                "This does not mean that those favoring any particular position should surrender
       their honest convictions as to the weight or effect of any evidence solely because of the
       opinion of other jurors or because of the importance of arriving at a decision.
                "This does mean that you should give respectful consideration to each other's
       views and talk over any differences of opinion in a spirit of fairness and candor. You
       should treat the matter seriously and keep an open mind. If at all possible, you should
       resolve any differences and come to a common conclusion.
                "You may be as leisurely in your deliberations as the occasion may require and
       take all the time you feel necessary."


Defense counsel expressed reservations about providing this instruction to the jury. In
response, the prosecutor noted that due to the potential for bad weather, it was important
to let the jurors know that they could take all the time they needed in order to reach a
decision. In agreeing with the State, the district court judge stated,


       "I'm particularly mindful that at this point in time we do not necessarily want to rush the
       jury simply because we're working to try and beat the weather, so I'm going to keep that
       instruction in place, noting the defendant's reservation and I think I'll just call it an
       objection to it and make it a continuing objection."


       It is possible that a deadlocked jury instruction—commonly known as an Allen-
type instruction—given during jury deliberations "could be coercive or exert undue
pressure on the jury to reach a verdict." State v. Struzik, 269 Kan. 95, 103, 109, 5 P.3d
502 (2000) (citing Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528



                                                      15
[1896]). In 2009, the Kansas Supreme Court disapproved the phrase "[a]nother trial
would be a burden on both sides," which formerly appeared in the PIK instruction on jury
deadlock. See State v. Salts, 288 Kan. 263, 264, 200 P.3d 464 (2009). More specifically,
the Salts court held that the phrase was (1) misleading because it was inaccurate in that
another trial may not always be a burden to both sides and (2) confusing because the
jurors were also told in another instruction not to concern themselves with what happens
to the case after their obligation as jurors had ended. 288 Kan. at 266. After Salts, the PIK
Committee removed the phrase from the instruction. State v. Wilson, 45 Kan. App. 2d
282, 286, 246 P.3d 1008, rev. denied 292 Kan. 969 (2011); see PIK Crim. 4th 68.140.


       Here, the district court instructed the jury using the post-Salts version of PIK
Crim. 4th 68.140, which makes no reference to the burden of another trial. This court has
deemed the instruction an accurate statement of the law. See Wilson, 45 Kan. App. 2d at
284-88 (holding that the instruction accurately states what will happen if the jury does not
reach a verdict); State v. Davis, No. 104,258, 2011 WL 6413624, at *4-5 (Kan. App.
2011) (unpublished opinion), rev. denied 296 Kan. 1132 (2013) (same); State v.
Alvarado, No. 104,507, 2011 WL 3250585, at *3-5 (Kan. App. 2011) (unpublished
opinion), rev. denied 296 Kan. 1131 (2013) (same). Moreover, there is no evidence to
suggest the jury was having trouble reaching a verdict; rather, the district court gave the
instruction before the jury began to deliberate due to concern about the weather and to
encourage jurors to take the time they needed to make a decision in the case. Giving the
instruction to the jury prior to deliberations is consistent with the recommendation set
forth in the Notes on Use following the instruction. See PIK Crim. 4th 68.140.


       Nevertheless, Kimberlin argues that PIK Crim. 4th 68.140 continues to be
defective based on the last sentence of the first paragraph, which advises the jury that if it
fails to reach a decision on some or all of the charges, that charge or charges are left
undecided for the time being and "[i]t is then up to the state to decide whether to resubmit
the undecided charge(s) to a different jury at a later time." Specifically, Kimberlin


                                             16
contends this language is confusing because it conflicts with the following instruction,
which also was given to the jury prior to deliberations: "Your only concern in this case is
determining if the defendant is guilty or not guilty. The disposition of the case thereafter
is a matter for determination by the Court." Kimberlin alleges that this instruction, when
coupled with the deadlocked jury instruction, caused confusion. More specifically,
Kimberlin claims the instructions taken together admonished the jury not to consider
what happens after the verdict, but then told the jurors what would happen in the event
they could not reach a decision. Kimberlin acknowledges that our Supreme Court already
has found these instructions did not warrant reversal in State v. Cofield, 288 Kan. 367,
374-77, 203 P.3d 1261 (2009). But Kimberlin points out the court in Cofield did not
discuss the opinion in Salts; thus, the holding is limited to deciding only that the
deadlocked jury instruction was not coercive but does not address his contention that the
instructions contradict one another.


       But in Wilson, this court addressed an argument similar to Kimberlin's—that
instructing a jury to concern itself with only guilt or innocence conflicts with language in
an Allen-type instruction—and found no conflict. 45 Kan. App. 2d at 286-88. Kimberlin
asserts that Wilson was wrongly decided and maintains that the instructions are
conflicting and confusing.


       Contrary to Kimberlin's argument, however, we find the reasoning set forth by the
court in Wilson to be sound and readily applicable to the present case. The two
instructions were not conflicting in that they both accurately instructed the jury that its
primary concern was to determine guilt or innocence and neither one of the instructions
asked the jury to consider whether the case should be retried if it failed to reach a verdict.
Therefore, the district court did not err in giving the deadlocked jury instruction. Because
there was no error, we need not reach the final step of the analysis, i.e., whether there is a
"reasonable probability" that the error affected the outcome of the trial in light of the
entire record. See Ward, 292 Kan. at 565, 569.


                                              17
Criminal history

       Kimberlin argues the district court violated his constitutional rights when it used
his criminal history information to increase his sentence without proving his criminal
history to a jury beyond a reasonable doubt, citing Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Kimberlin acknowledges that the Kansas
Supreme Court ruled against his position in State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d
781 (2002), but includes the argument to preserve it for federal review. The Supreme
Court has shown no indication that it is departing from its previous position and has, in
fact, consistently reaffirmed Ivory. See, e.g., State v. Castleberry, 301 Kan. 170, 191, 339
P.3d 795 (2014); State v. Smith-Parker, 301 Kan. 132, 135, 340 P.3d 485 (2014); State v.
McCune, 299 Kan. 1216, 1234-35, 330 P.3d 1107, cert. denied 135 S. Ct. 457 (2014). We
are bound to follow this precedent. See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264
P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).


Conclusion


       Based on the analysis set forth above, we affirm in part, vacate in part, and remand
with directions. Because we find no merit in Kimberlin's claims of prosecutorial
misconduct, erroneous jury instructions, and use of criminal history in sentencing, we
affirm Kimberlin's convictions. Nevertheless, we vacate the sentences imposed for his
felony convictions and remand with directions for the district court to resentence
Kimberlin by designating either Count 2 or 4—both of which are presumptive
imprisonment crimes pursuant to the special rule in K.S.A. 2014 Supp. 21-6805(f)(1)—as
the primary crime. Given it is undisputed by the parties that the journal entry of judgment
erroneously reflects that the district court ordered Kimberlin's misdemeanor sentences to
run consecutively, we remand the matter with directions to correct the journal entry so
that it is consistent with the sentence imposed at the sentencing hearing.




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