               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 112,069

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                       KEITH A. RITZ,
                                         Appellant.


                              SYLLABUS BY THE COURT


1.
       In reviewing a district court judge's decision to deny a motion to sever charges, an
appellate court follows three steps. Each requires application of a different standard of
review. The court first considers whether the governing statute permits joinder. On this
issue, the appellate court reviews the judge's factual findings for substantial competent
evidence and the judge's legal conclusion on whether one of the statutory conditions has
been met de novo. Second, the court determines whether the district court judge properly
exercised his or her discretion on joinder or severance; there is no error on this step
unless the appellate court discerns an abuse of discretion. Third and finally, if there was
an error on the first or second step or both, the appellate court must determine whether
the error affected a party's substantial rights. On the record in this case, there was no error
in the district court's denial of the defendant's motion to sever two sets of charges against
him.


2.
       There is no federal constitutional requirement to instruct juries on offenses that are
not lesser included crimes of the charged crime under state law. And the inviolate right of

                                               1
jury trial in Section 5 of the Kansas Constitution Bill of Rights is limited to fact issues in
criminal cases; it does not demand that a jury be permitted to determine a legal question
such as the choice of instructions on lesser degrees of a charged crime.


3.
        A judge's use of criminal history that has not been included in a charging
document and proved beyond a reasonable doubt to a jury as a basis for a criminal
sentence or its enhancement is not prohibited by Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).


        Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed March 3, 2017.
Affirmed.


        Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.


        Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


        BEIER, J.: Defendant Keith A. Ritz appeals his convictions for multiple counts of
fleeing or attempting to elude, two counts of theft, and a single count of first-degree
felony murder. Ritz raises three issues in his appeal, alleging error in the district court
judge's denial of a defense motion to sever charges, error in the district court judge's
failure to instruct the jury on lesser degrees of felony murder, and error in the district
court judge's reliance on his criminal history for sentencing.




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       As detailed below, we reject each of Ritz' arguments and affirm his convictions
and sentence.


                           FACTUAL AND PROCEDURAL BACKGROUND

       On the evening of December 26, 2012, Officer Bradley Carver of the Wichita
Police Department was on patrol when he saw a Corvette that appeared to be speeding.
Carver did not get a radar reading of the Corvette's speed because of a Honda that was
following the Corvette. Carver followed the Corvette until it turned onto a side street and
stopped in front of a house. The Honda stopped behind the Corvette. A passenger got out
of the Corvette, ran up to the front door, appeared to unscrew a floodlight on the front of
the house, and then ran back to the street and got into the Honda. Carver started to get out
of his car. As soon as he did, the "Corvette . . . squealed tires and took off." Carver got
back into his car, turned on his siren, and began pursuit. The chase that followed was
captured on the dashboard camera in Carver's patrol car, and the video would later be
admitted at Ritz' trial.


       Carver pursued the Corvette through a residential area at "probably 60 to 65 miles
[per] hour." At one point in the chase, the Corvette failed to negotiate a T intersection and
jumped a curb into a church parking lot. The Corvette continued out of the parking lot,
and Carver followed. At another point, it appeared to Carver that the chase was over
because the Corvette had failed to make a right-hand turn and had overcorrected, spun,
and went up onto a curb. But the driver of the Corvette backed out and continued.
Eventually Carver "noticed the left rear tire of [the Corvette] leave the vehicle . . . and
[the driver] lost control . . . spun a complete 180 and struck a light pole" on the corner of
an intersection.




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       When the Corvette was stopped, Carver exited his car, drew his weapon, and
approached the Corvette. Carver ordered the driver to show his or her hands and
acknowledge Carver's presence. Carver got no response. As Carver approached the
Corvette, he noticed that it was so damaged that the "driver's seat was not really visible
from the driver's side." When Carver went around the front of the car, he found the only
occupant "laid across the front seat with his feet still underneath the steering wheel of the
vehicle and his head partially out of the sunroof of the Corvette."


       The Corvette driver would later be identified as Ritz.


       Ritz was charged with two alternative counts of fleeing or attempting to elude an
officer, theft, and driving while a habitual violator in connection with the events of
December 26.


       On the morning of March 5, 2013, Officer Jason Emery of the Wichita Police
Department responded to a dispatch to check on a vehicle near the Arkansas River. A
second officer, Alex Recio, also responded. When Emery arrived in the area, he spotted a
parked full-size GMC pickup matching the description he had been given.


       Emery and Recio each pulled behind the pickup. The pickup started rolling
forward and traveled a very short distance before pulling into the private drive of a
residence. Emery and Recio pulled in behind the pickup and stopped. Recio got out of his
car and started to walk toward the pickup. Emery started to do the same but decided to
stay in his car. As Recio approached, the pickup was backed out of the drive into the
street. It then started to roll forward and accelerated away. Emery activated his lights and
sirens and gave chase.




                                              4
       Initially, the pickup was driving approximately 40 miles per hour through a 30-
miles-per-hour residential area. It continued gaining speed and drove through several stop
signs and stoplights, making it difficult for Emery to keep up. Emery nevertheless
continued his pursuit. When he reached Harry Street he saw "debris, like a big smoke
cloud and debris flying in the air" and realized there had been a collision of the pickup he
had been chasing and another car.


       Emery would later testify at Ritz' trial that the entire chase "[c]ouldn't have been
more than probably a minute, minute and a half." At no time during the chase had Emery
turned off his lights and siren. Data from recorders in both vehicles involved in the
collision would later be admitted into evidence. It showed that the pickup reached a
maximum speed of 77 miles per hour approximately 2 seconds before the collision. At
about the same time, the pickup's throttle dropped to 0 percent and the pickup brake
lights came on, which indicated the driver had depressed the brake pedal. The last
recorded speed was 70 miles per hour, approximately 1 second before the collision.


       The driver of the pickup would later be identified as Ritz.


       When Emery stopped, he could see that the driver of a second vehicle involved in
the crash was slumped over and not moving. When Recio, who had also pursued the
pickup, arrived at the scene, he focused on the other driver while Emery focused on Ritz.
The other driver, Venancio Perez-Najera, was unconscious; and a third officer could not
find his pulse. Perez-Najera was ultimately pronounced dead at the scene.


       Ritz was charged with first-degree felony murder predicated on fleeing or
attempting to elude an officer, two alternative counts of fleeing or attempting to elude an
officer, theft, and driving while a habitual violator in connection with the events of March
5.
                                              5
       All of Ritz' charges were filed in a single information, and Ritz moved before trial
to sever the crimes by date. After briefing and oral argument by both sides, the district
judge ruled from the bench that the two sets of crimes were of the same or similar
character under K.S.A. 22-3202, making their joinder appropriate.


       The district judge began his analysis of the motion by noting the similarity of the
charges. In both cases, Ritz had been charged with reckless fleeing or eluding, driving
while a habitual violator, and felony theft. The judge acknowledged that the second case
also resulted in a felony-murder charge absent from the first incident and that the thefts
were factually distinct. In one set of charges, the State alleged that Ritz had stolen the
vehicle in which he fled, whereas in the other the State alleged that Ritz obtained the
vehicle from a third party, knowing it to be stolen.


       The district judge next focused on whether the charged crimes were of the same
general character requiring the same mode of trial, the same kind of evidence, and the
same kind of punishment. He noted that the mode of trial for each set of charges was jury
trial and that the potential punishment for each charge was incarceration. The judge also
noted that the same type of evidence would be needed because both sets of charges would
require the testimony of the officers who had participated in the chase.


       The district judge also discussed the factual similarities of the two cases. The
crimes were fewer than 75 days apart. In both cases, Ritz' flight from police took place in
residential neighborhoods within the city limits and ended with an accident involving the
car Ritz was driving. The judge acknowledged that the two chases happened at different
times of day and that only the second accident resulted in a death. The district judge also
compared Ritz' statements to police after his two arrests. After the first chase, Ritz told
investigators, "I'm a fucking idiot. I just fucked up my life. I'm such an idiot. I can't
                                               6
believe I did this. I'm sorry." The judge summarized Ritz' statements: He "admitted to
stealing the car, admit[ted to] taking off when the police got right behind him." The judge
also summarized Ritz' statements after the second chase: Ritz told investigators that "two
cops pulled up on him, he freaked out, punched the gas, . . . was going fast and he should
have stopped."


       Finally, the judge noted that the State's argument was that Ritz' motive for fleeing
or attempting to elude in each instance was his knowledge that he was driving a stolen
vehicle.


       All of the charges—with the exception of the two misdemeanors for driving while
a habitual violator, which were the subject of a plea agreement—were tried to a jury.


       At trial, Detective Michael Amy testified about his interview of Ritz after the
March 5 chase. Ritz had told Amy that when police pulled behind him "that he had
freaked out and backed out of the driveway and punched the gas." According to Amy,
Ritz stated that "he knew he was supposed to stop." Ritz told Amy that he tried to stop,
but "things were flying around in the truck or fell off." He "kept saying it was either—he
thought it was a—a pop bottle or a water bottle or something of that nature" that ended up
underneath the brake pedal and prevented Ritz from using the brakes. Amy testified that
the only bottle found in the pickup by investigators was an ibuprofen bottle. Based on
testing conducted by investigators, it was not possible for that bottle to jam under the
brake pedal. Ritz also admitted to Amy that he had stolen the Corvette he was driving on
December 26. Ritz acknowledged that the GMC pickup he was driving on March 5 may
have been stolen, because the friend who had "asked [Ritz] to move [the GMC] truck . . .
[and] go and park it by the river . . . was into stealing cars."




                                               7
       At the conclusion of the trial, the jury found Ritz guilty on all of the charges. For
the December 26 crimes, Ritz was convicted of two alternative counts of fleeing or
attempting to elude a police officer and theft. For the March 5 crimes, Ritz was convicted
of first-degree felony murder, two alternative counts of fleeing or attempting to elude a
police officer, and theft.


       Ritz received a life sentence for the felony-murder conviction; his sentences for
the other convictions—the longest of which was 7 months—were ordered to run
concurrently with each other and with the life sentence.


                                      SEVERANCE OF CHARGES


       Ritz' first issue on appeal is whether the district judge erred when he denied the
motion to sever. When reviewing such decisions, we follow three steps. Each requires us
to apply a different standard of review.


       "First, we consider whether K.S.A. 22-3203 permitted joinder. Under that statute,
       multiple complaints against a defendant can be tried together if the State could have
       brought the charges in a single complaint. K.S.A. 22-3202(1) spells out the three
       conditions permitting the joining of multiple crimes in a single complaint. Whether one
       of the conditions is satisfied is a fact-specific inquiry, and we review the district court's
       factual findings for substantial competent evidence and the legal conclusion that one of
       the conditions is met de novo. See State v. Gaither, 283 Kan. 671, 684-85, 156 P.3d 602
       (2007).


                 "Second, because K.S.A. 22-3202(1) provides that charges 'may' be joined, a
       district court retains discretion to deny a joinder request even if a statutory condition is
       met. We review this decision for an abuse of discretion. See Gaither, 283 Kan. at 685.




                                                      8
                "Finally, if an error occurred in the preceding steps, we determine whether the
        error resulted in prejudice, i.e., whether the error affected a party's substantial rights.
        K.S.A. 2012 Supp. 60-261." State v. Hurd, 298 Kan. 555, 561, 316 P.3d 696 (2013).


        K.S.A. 22-3202(1) allows two or more crimes to be charged in the same complaint
if: (1) the charges are of "the same or similar character"; (2) the charges are part of the
"same act or transaction"; or (3) the charges result from "two or more acts or transactions
connected together or constituting parts of a common scheme or plan."


        In this case, as mentioned, the district judge relied on the two sets of crimes being
"the same or similar character." In his brief, Ritz does not appear to challenge the
sufficiency of the evidence supporting any of the factual findings the district judge made;
rather, he argues that those facts did not support the judge's legal conclusion.


        We have previously articulated a general test for determining when joinder is
appropriate:


                "When all of the offenses are of the same general character, require the same
        mode of trial and the same kind of evidence, and occur in the same jurisdiction, the
        defendant may be tried upon several counts of one information or if separate informations
        have been filed they may be consolidated for trial at one and the same trial." State v.
        Crawford, 255 Kan. 47, 53, 872 P.2d 293 (1994) (citing State v. Ralls, 213 Kan. 249,
        256-57, 515 P.2d 1205 [1973]).


        Later, in State v. Barksdale, 266 Kan. 498, 973 P.2d 165 (1999), this court recited
this test:


        "'So far as the joinder of separate offenses in the same information is concerned, the test
        is: Are the charges of the same general nature and will the joinder deprive the defendant


                                                       9
       of an advantage in the trial, or are they incongruous and repugnant in character and will
       they operate to deprive the defendant of some legal advantage?'" 266 Kan. at 507.


The Barksdale court also warned "against relying solely on generalities when considering
the propriety of joinder." 266 Kan. at 508.


               "'That offenses must be of the same general character is not always a sound test
       of joinder. In this instance the two crimes charged were of the same general character, in
       that they both involved force and violence to the person. That, however, would not
       necessarily be sufficient. To illustrate: As the culmination of a long-standing quarrel
       about a line fence, a farmer kills his neighbor. He goes to town, and the same afternoon,
       while in an excited frame of mind, he becomes involved in an altercation about a business
       matter, and makes an assault with some kind of a deadly weapon with intent to kill.
       While the offenses are of the same general character, there should be separate
       informations and separate trials. The only reason this is so is, there would inevitably be
       some jumbling of the two cases at the trial, which would tend to prevent that concentrated
       consideration of each case which is indispensable in matters of such gravity.'" 266 Kan.
       at 508 (quoting State v. Thompson, 139 Kan. 59, 61-62, 29 P.2d 1101 [1934]).


       More recently, in State v. Smith-Parker, 301 Kan. 132, 340 P.3d 485 (2014), we
addressed consolidation of two cases for a single trial and summarized our caselaw
analyzing the "same or similar character" condition for permitting joinder.


               "On the first statutory condition, crimes of the same or similar character, we note
       that earlier Kansas cases that have held consolidation or joinder to be appropriate have
       generally had multiple commonalities, not merely the same classification of one of the
       crimes charged. See State v. Carr, 300 Kan. 1, 101-04, 331 P.3d 544 (2014) (victims
       identified defendants; aspects of modus operandi consistent between crimes); State v.
       Cruz, 297 Kan. 1048, 1055, 307 P.3d 199 (2013) (both victims leaving nightclub at
       closing time; both accosted before reaching vehicle; both had little warning before shot
       repeatedly; same gun used; defendant identified in both cases; both cases charged first-
       degree murder, criminal possession of firearm); State v. Gaither, 283 Kan. 671, 687, 156
                                                    10
       P.3d 602 (2007) (both victims drug dealers; defendant on quest for drugs during both;
       both victims shot with 9 mm handgun; both occurred in private dwellings; 5-day time
       span); State v. Barksdale, 266 Kan. 498, 506-10, 973 P.2d 165 (1999) (both crimes
       murder; victims killed in similar manner; robbery common motive); State v. Crawford,
       255 Kan. 47, 48, 53-54, 872 P.2d 293 (1994) (both crimes robbery; victims identified
       defendant; similar modus operandi)." Smith-Parker, 301 Kan. at 157-58.


In Smith-Parker, we concluded that the "same or similar character" condition was not
satisfied.


               "Here, although each case involved a single homicide, the homicides lacked
       many other similarities. The murder of Mack was tied to a burglary, apparently targeted
       at a large amount of marijuana in his possession. Mack was apparently shot suddenly
       from across the room while he was seated or in the process of standing up to face at least
       one of the burglars. In contrast, Letourneau and Smith-Parker, as the district judge found,
       were so close that they considered themselves brothers, and had spent much of several
       days in one another's company. Letourneau's death followed an argument between him
       and Smith-Parker over Letourneau's treatment of Letourneau's girlfriend. Whether that
       argument provided a motivation for the fatal shooting or the shooting was accidental or a
       suicide was disputed. On this slim record, we cannot say as a matter of law that the first
       statutory condition for consolidation or joinder was met." 301 Kan. at 158.


Despite rejecting the "same or similar character" condition, joinder was appropriate in
Smith-Parker because the factual findings of the district judge supported the third
condition precedent listed in the statute—"two or more acts or transactions connected
together or constituting parts of a common scheme or plan." See 301 Kan. at 158-60.
That condition precedent, of course, is not before us in this case.


       Here, based on the district judge's undisputed factual findings and thorough
analysis, it is easy for us to conclude that Ritz' two sets of crimes were "of the same or
similar character," making joinder permissible under K.S.A. 22-3202. As an initial
                                                   11
consideration, the charges stemming from each incident overlap greatly: Both resulted in
charges of fleeing or attempting to elude an officer, theft, and driving while a habitual
violator. But, as we held in Smith-Parker, overlap in the crimes charged is not enough to
establish that crimes are of the same or similar character. See 301 Kan. at 158. There
must be other factual similarities between the two sets of crimes. Unlike in Smith-Parker,
those factual similarities are present here.


       The district judge found that in both cases Ritz' flight began when police pulled in
behind him while he was driving a stolen car. The judge noted that after the first incident
Ritz admitted to "taking off when the police got right behind him." After the second
incident Ritz admitted to investigators that "two cops pulled up on him, he freaked out,
[and] punched the gas." In both cases, the flight took place in residential neighborhoods
within the city limits. And in both cases, the flight ended when Ritz wrecked the vehicle
he was driving.


       In addition to the factual similarities between the two sets of crimes, the district
judge correctly noted that both sets of crimes required the same mode of trial—trial by
jury—and could result in the same type of punishment—incarceration.


       Taking all of these aspects of the judge's decision into consideration, the two sets
of crimes are of the same or similar character, establishing a prerequisite for joinder
under K.S.A. 22-3202(1). This satisfies the first step of our analysis. See State v. Gaither,
283 Kan. 671, 684-85, 156 P.3d 602 (2007).


       The second step requires us to determine whether the district judge abused his
discretion. See Hurd, 298 Kan. at 561. Ritz does not advance any particularized argument
on this step, and we see no basis for one. We thus hold that the judge did not abuse his


                                               12
discretion. Indeed, the district judge's ruling from the bench was complete and
comprehensive, demonstrating a careful exercise of discretion.


        Because the statutory legal threshold was met in the first step and the judge did not
abuse his discretion in the second step, there was no error in the ruling on the motion to
sever. We do not need to reach the third step of our analysis, examination for
harmlessness or reversibility. See Hurd, 298 Kan. at 561.


                             LESSER INCLUDED CRIME INSTRUCTIONS


        Ritz also argues on appeal that "the purported statutory elimination of his right to
instructions on lesser included offenses" in K.S.A. 2016 Supp. 21-5109(b)(1) and K.S.A.
2016 Supp. 21-5402(d) violates federal and state constitutional protections of his right to
jury trial.


        Identical claims were decided adversely to defendants in two new cases from this
court. See State v. Love, 305 Kan. __, __ P.3d __, 2017 WL 244772, at *9-13 (No.
112,611, filed January 20, 2017); State v. Brown, 305 Kan. __, __ P.3d __, 2017 WL
252449, at *9-10 (No. 111,166, filed January 20, 2017). We see no reason to depart from
those holdings here.


        Highly summarized, the new cases state that there is no federal constitutional
requirement to instruct juries on offenses that are not lesser included crimes of the
charged crime under state law. See Hopkins v. Reeves, 524 U.S. 88, 90-91, 118 S. Ct.
1895, 141 L. Ed. 2d 76 (1998). And the inviolate right of jury trial in Section 5 of the
Kansas Constitution Bill of Rights is limited to fact issues in criminal cases; it does not
demand that a jury be permitted to determine a legal question such as the choice of
instructions on lesser degrees of a charged crime. See Love, 2017 WL 244772, at *12-13.
                                              13
                                          APPRENDI

       Ritz' final appellate issue challenges the district judge's use of prior convictions as
a basis for Ritz' criminal history score to enhance his sentence without requiring the
criminal history to be included in the charging document and proved to a jury beyond a
reasonable doubt. Ritz relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000).


       Ritz acknowledges that we have previously rejected this argument. See State v.
Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). He does not present a new or persuasive
argument compelling us to overturn that precedent. See State v. Williams, 299 Kan. 911,
941, 329 P.3d 400 (2014). We therefore reject his claim.


                                        CONCLUSION

       Defendant Keith A. Ritz was not entitled to have his two sets of charges severed or
to have his jury instructed on lesser degrees of felony murder. Further, the district judge
was entitled to rely on Ritz' criminal history for sentencing. We affirm the judgment of
the district court.




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