State v. Royer ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,675
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAVID JEFFREY ROYER,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed September 4,
2020. Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BRUNS and POWELL, JJ.
PER CURIAM: David Jeffrey Royer appeals his conviction of a single count of
arson following a jury trial. On appeal, Royer contends that the evidence presented by the
State at trial was insufficient to support his conviction. Royer also contends that the State
committed prosecutorial error that denied his right to a fair trial. In addition, Royer
contends that the district court's determination of his criminal history score violated
section 5 of the Kansas Constitution Bill of Rights. Based on our review of the record in
light of Kansas law, we do not find any reversible error. Thus, we affirm Royer's
conviction.
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FACTS
In early November 2017, Royer and Michael Hemmert lived near one another in
Topeka. Both Royer and Hemmert rented houses owned by Wanda Lawson. Evidently,
Royer became concerned about two women who were living in a vehicle behind
Hemmert's house. Between November 5 and November 8, 2017, Royer began calling
Lawson to express his concerns. However, the two were unable to connect so Royer left
Lawson several voice messages on her phone. Frustrated by Lawson's failure to respond,
Royer became increasingly upset, as reflected in the messages he left.
In the first message, Royer stated:
"Hey Wanda, this is David. I'm getting ready to go down and put these females out, out of
902. I'm getting ready to kick these females out of 902; if they'll answer the door. They've
been messing with me all night long; and, um, this, this is no good down here. They're
gonna have to go; and, uh, I'll call the police later if they don't. If I can't get them out now,
I'm gonna call the police and I'm gonna have 'em put out. You might wanna come by. I'll
talk to you later. Bye."
In the second message, Royer said:
"Hey Wanda. Hey, what I was saying was I'm getting ready to put these females over at
902; I'm getting ready to put 'em out, while it's still early November. And, um, if uh, they
give me a problem, I'll just, uh, call the police and, uh, have the police help. And, if we
still have a problem doing that, then I'm going to light their car on fire, the car they're
sleeping in, the car they're sleeping in out back. I'm gonna light that car on fire so I just
thought I'd let you know. We gotta get 'em outta here, we gotta get 'em outta here. I'm
gonna, I'm gonna try to get 'em out. And, if they don't leave, if they don't leave and
there's a problem when the police come, after the police leave, I'm just gonna burn 'em
out. I'll see you later. Bye." (Emphasis added.)
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The following day, Royer left another message:
"Hi Wanda, this is David. Did you get my message yesterday? Um, those girls next door,
they're gonna have to go. They're living in a car, they're sleeping in a car out back. Uh,
they messin' with me all night long every night, um, they . . . I'm . . . I need, I need your
permission to kick 'em out. Um, I need you to come by too or call me . . . . "
On November 8, 2017, Royer left a fourth message:
"Hey Wanda, this is David. Are you coming by today? We gotta go down to 902. We, we
have to talk to that guy. You have got to get him outta there! You have got to get him out
of 902! I'm not gonna live like this, I'm not gonna listen to those people anymore Wanda!"
Later that day, Royer and Lawson where able to speak with one another on the
phone. According to Lawson, Royer reiterated the concerns he had previously expressed
in the voice messages that he had left. Lawson subsequently testified at trial that Royer
told her that he was going to make some "needed" changes by burning the house down.
After talking to Lawson, Royer confronted Hemmert and two of his friends while
they were working on a car in front of Hemmert's house. Although the facts regarding the
confrontation are disputed, Royer testified at trial that he left at some point to call the
police to report a weapon allegedly brandished by one of Hemmert's friends. According
to Royer, after waiting for the police for a few minutes, he decided to return to
Hemmert's house where the confrontation continued. The parties to the confrontation
agree that a fight ensued. Hemmert and one of his friends testified at trial that when
Royer left, he threw rocks at the car and yelled, "I'm gonna go get a gas can and scorch
[or torch] this mother . . . ."
Shortly thereafter, Hemmert and his friends left Hemmert's house to go work on
Lawson's car at her house. One of Hermmert's friends testified at trial that as he was
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leaving, he saw Royer walking towards Hemmert's house with a red gas can. According
to Royer's version of the events, he did not go back to Hemmert's house but, instead, went
to a nearby grocery store to buy a snack before returning to his own house to wait for the
police.
When Officer Aaron Bulmer arrived at Royer's house, Royer declined to talk about
the confrontation. Because no one was home at Hemmert's house, Officer Bulmer decided
to leave and write his report at a nearby park. A few minutes later, Office Bulmer noticed
smoke coming from Hemmert's house and saw a fire report on his computer.
After the fire at Hemmert's house was extinguished, a Topeka Fire Department
Investigator searched the premises with "Webster," an accelerant detection K-9 unit. The
dog alerted to ignitable liquids in five locations around the house, including by the front
door. Later, another fire investigator collected samples from the identified locations. It
was later confirmed that the samples were gasoline and it was determined that the origin
of the fire was just to the right of the front door. It was also determined that the cause of
the fire was incendiary and not accidental.
One of the fire investigators spoke with Lawson on the day of the fire and she
shared the messages that Royer had left on her phone. Two days later, the fire
investigator questioned Royer and recorded their conversation. During that interview,
Royer told the investigator about the confrontation at Hemmert's house and claimed that
he went to a grocery store while waiting for the police to arrive. When asked directly,
Royer denied going to a gas station.
During the recorded interview with the fire inspector, the following discussion
occurred:
"Investigator Hanika: Did you go to the grocery store or the [Kwik] Shop?
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"Royer: Nah, I went to, uh, the, Mike's IGA.
"Investigator Hanika: OK. Did you go to [Kwik] Shop too?
"Royer: Ummm . . . [three-second pause]
"Investigator Hanika: I need you to be honest with me.
"Royer: Did I go to [Kwik] Shop? No. I went to Mike's IGA."
When the fire investigator asked Royer where he was when the fire started, he said
that he had went to a park to take a walk. Royer further indicated that he heard sirens and
saw smoke coming from near his house. Specifically, Royer told the fire investigator that
when he saw the smoke and heard the sirens, he decided not to go home because he
thought, "they're gonna blame me for that." On February 16, 2018, after the fire
investigation had been completed, the State charged Royer with one count of arson.
The district court commenced a two-day jury trial on October 9, 2018. During the
trial, the State presented the testimony of Officer Bulmer, the two fire investigators, the
forensic scientist who tested the samples taken from the scene of the fire, Lawson,
Hemmert, and one of Hemmert's friends. In addition, 23 exhibits offered by the State
were admitted into evidence. These exhibits included: Royer's messages to Lawson, the
fire investigator's recorded interview with Royer, the lab report showing the presence of
gasoline, and several photos of the fire damage. After the State rested, Royer exercised
his right not to testify and did not call any other witnesses or offer any exhibits into
evidence.
After being instructed on the law by the district court and deliberating, the jury
found Royer guilty of arson. On December 7, 2018, the district court found Royer's
5
criminal history score to be A and sentenced him to 40 months in prison. Thereafter,
Royer filed a timely notice of appeal.
ANALYSIS
Issues Presented
On appeal, Royer raises three issues. First, whether the evidence presented by the
State was sufficient to support his arson conviction. Second, whether the State committed
prosecutorial error during voir dire and during closing arguments. Third, whether the
district court's determination of his prior criminal history violated section 5 of the Kansas
Constitution Bill of Rights. For the reasons set forth below, we do not find any reversable
error in this case.
Sufficiency of the Evidence
Royer argues that the evidence presented by the State at trial was not sufficient for
the jury to find him guilty of arson beyond a reasonable doubt. When the sufficiency of
the evidence is challenged, we must review the evidence in the light most favorable to the
State to determine whether a rational fact-finder could have found the defendant guilty
beyond a reasonable doubt. State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). In
doing so, we are not to reweigh the evidence, resolve evidentiary conflicts, or assess the
credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).
Here, the record shows that the district court appropriately instructed the jury that
in order to establish that Royer committed the offense of arson in violation of K.S.A.
2019 Supp. 21-5812(a)(1), the State was required to prove the following elements beyond
a reasonable doubt:
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"1. The defendant knowingly, by means of fire, damaged property in which Wanda
Lawson and/or Michael Hemmert had an interest, without the consent of Wanda Lawson
and/or Michael Hemmert.
"2. The property was a dwelling.
"3. This act occurred on or about the 8th day of November, 2017, in Shawnee County,
Kansas."
At trial, the State presented a considerable amount of evidence regarding Royer's
history of conflict with Hemmert, as well as about the threats Royer made prior to the
fire. In addition to witness testimony, the recorded voice messages that Royer left on
Lawson's phone were admitted into evidence for the jury to consider. As such, the jurors
were able to listen to Royer's own words. Also, the State presented evidence of a
confrontation between Royer, Hemmert, and two of Hemmert's friends on the day of the
fire. According to the testimony of witnesses, Royer threatened to "go get a gas can" and
either "scorch" or "torch" Hemmert's house.
In addition, the fire investigator's recorded interview of Royer was admitted into
evidence at trial. As such, the jurors, once again, were able to listen to Royer's own
words. Among other things, Royer told the investigator during the interview that he went
to Hemmert's house because he "wanted to know what their problem was" and that he
"wanted to confront 'em." Although Royer claimed during the interview that he went to a
grocery store after the confrontation with Hemmert and his friends, the jurors were also
able to hear Royer's delay in answering whether he also went to the Kwik Shop where
gasoline was sold.
Moreover, there was testimony from a witness indicating that he saw Royer
walking back toward Hemmert's house with a red gas can shortly after the confrontation.
Additionally, the State presented evidence that the investigation conducted by the Topeka
7
Fire Department concluded that the fire at Hemmert's house was intentionally set rather
than accidental and that gasoline was used as an accelerant. The State also presented
evidence that gasoline was found at the origin of the fire, which was just to the right of
the front door of the house.
Royer suggests that the evidence presented by the State was insufficient because it
was circumstantial in nature. But a conviction of even the gravest offense may be
supported by circumstantial evidence if such evidence provides a basis to reasonably
infer the existence of the fact in issue. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836(2016). In fact, it is not unusual for an arson conviction to be based primarily—if not
exclusively—on circumstantial evidence. See, e.g., State v. Crosby, 182 Kan. 677, 684,
324 P.2d 197 ([1958]) ("In the very nature of things, arson is very rarely committed in the
presence of others. Ordinarily arson is committed alone and in secret, and the absence of
direct evidence is no bar to a conviction of the offense."). In addition, circumstantial
evidence need not exclude every other reasonable conclusion to be sufficient to support a
criminal conviction. Logsdon, 304 Kan. at 25.
Based on our review of the record on appeal in the light most favorable to the
State, we find that there was sufficient evidence presented at trial upon which the jury
could conclude that Royer is guilty of the crime of arson beyond a reasonable doubt. In
particular, based on the evidence presented—as well as the reasonable inferences that
could be drawn therefrom—the jury could conclude that Royer carried out his threats to
set fire to Hemmert's house. Although no one actually saw Royer lighting the fire, the
evidence presented by the State—if believed—was sufficient to prove beyond a
reasonable doubt that Royer intentionally set fire to the house using gasoline.
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Prosecutorial Error
Next, Royer argues that the State committed prosecutorial error during voir dire as
well as during closing arguments, which resulted in him being denied a fair trial. When
reviewing this issue, we apply the two-step test established by the Kansas Supreme Court
in State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016). As our Supreme Court
explained:
"These two steps can and should be simply described as error and prejudice. To determine
whether prosecutorial error has occurred, the appellate court must decide whether the
prosecutorial acts complained of fall outside the wide latit ude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial. If error is found, the appellate
court must next determine whether the error prejudiced the defendant's due process rights
to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional
harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012)." Sherman,
305 Kan. at 109.
First, Royer complains about the following statement made by the prosecutor
during voir dire:
"I want to know if anybody may be familiar with the facts. In this case, Mr. Royer was
charged with arson. The crime occurred at 902 Northeast Winfield, and that happened on
November 8th of 2017. Does anybody think they might be familiar with the facts, or have
driven by and saw what happened, or anything like that?" (Emphasis added.)
9
The purpose of voir dire is to question potential jurors to make sure that the jury
that is ultimately sworn to hear the case is not biased or prejudiced but will hear the
evidence and decide the case impartially. The goal of the district court—as well as of this
court—is to ensure that a case is tried by an impartial jury free from outside influences.
See State v. Woods, 301 Kan. 852, 870, 348 P.3d 583 (2015). A prosecutor commits error
by making statements "that dilute the State's burden of proof or attempt to define
reasonable doubt." State v. Holt, 300 Kan. 985, Syl. ¶ 4, 336 P.3d 312 (2014). However,
we are to consider a prosecutor's statements to the jury in the context in which they were
made rather than in isolation. State v. Davis, 306 Kan. 400, 413, 394 P.3d 817 (2017).
Here, when the statement made by the prosecutor during voir dire is viewed in
context, we find that it was not error. The prosecutor made it clear that "Mr. Royer was
charged with arson" but did not state that he committed arson. Although prosecutors
must be careful not to dilute the State's burden of proof, the prosecutor simply mentioned
the address where the fire occurred and the date on which it happened in an attempt to
determine if any of the potential jurors were familiar with the facts.
Moreover, the statement that "[t]he crime occurred" was mentioned only once in
passing by the prosecutor. At no point did the prosecutor suggest that the State had
already proven that Royer had committed the crime of arson. When viewed in context,
this statement was similar to the prosecutor saying "the fire occurred" at a certain location
on a particular date.
Further, the prosecutor stated on several occasions during voir dire that it would be
the State's burden throughout the trial to prove beyond a reasonable doubt that Royer was
guilty of arson. Specifically, the prosecutor told the potential jurors:
"I represent the State. The burden is on me the entire time. The burden will never shift to
the defendant. It's never his burden to prove his innocence. It's my burden to prove him
10
guilty beyond a reasonable doubt. So my burden the whole entire case is to prove the
defendant guilty beyond a reasonable doubt."
In addition to the prosecutor's statements regarding the burden of proof during voir
dire, the district court also properly instructed the jury that the burden of proof was on the
State to establish each of the elements of arson beyond a reasonable doubt. Likewise, the
prosecutor made it clear during closing arguments that the burden of proof was on the
State. Under these circumstances, we do not find that the prospective jurors were misled
about the State's burden of proof. Consequently, we conclude that the prosecutor did not
commit error during voir dire and, even if she had done so, we find no prejudice to Royer
because the alleged error did not impact the outcome of the trial.
Next, Royer argues that the prosecutor misstated the evidence on three occasions
during the State's closing argument. In particular, he points to the following section of the
prosecutor's argument:
"So, what happened? David Royer went over there with gasoline. He poured the
gasoline on the front door and the area of the front door and set it on fire, and that house
was lit on fire.
"Something else to consider: Michael Hemmert testified that that was the only
way in and out of the home. Now, when you're looking at the voicemails that the
defendant left to Wanda versus what had happened, the defense is going to suggest to you
that, oh, he only threatened to burn down the car. He didn't threaten to burn down the
house. That's correct. We have no voicemails where he threatened to burn down the
house. However, the females were sleeping in the car. He was threatening to and fine
with burning up the car with them in them—excuse me—them in the vehicle and burning
it up.
"Now, transpose that to November 8th of 2017. He, then, becomes fine with
burning the house up, and not only burning it up and making good on his threats that he
made earlier, these voicemails, but he was fine with setting that fire at the only entrance
11
and exit to that residence. If someone would have been in the home, they would not have
been able to get in and out of that door.
"Now, you can hear from the call, and the defendant said in his statements to
Officer Hanika, he was angry that morning. He had just engaged in a fight. He was upset
with 902. There's girls in there messing with him. He wanted people out.
"So what did he do? He took it upon himself to get those people out. He goes
over there. He's yelling at these boys. 'You can't be here. You've got to get out of here.'
And a fight happens. They get in a fight. After the fight, he goes home. David—excuse
me. Michael and Dorian testified that as he walked away, he said, 'I'm gonna burn this
MF'er. I'm gonna torch this.' They both—at least Dorian thought he meant the house.
"Michael testified today that even though he didn't think the defendant would
actually do that, he didn't think he was gonna make good on the threat, he understood that
to mean the house as well.
"So what do we have? We have these previous threats to burn down the car,
because he's mad at 902. Then, the day of the fire, after the fight happens, he's mad—still
mad at 902, and he says, 'I'm gonna burn this MF'er down. I'm gonna torch it.' And what
did he do? That's exactly what he did.
"He went down to Mike's IGA, got some snack cakes, some pop. But what he
hesitated in his interview was, 'Did you go to the Kwik Shop?' He hesitates to answer that
question to Brad Hanika. Why is that? Because he knows if he says yes, that puts him at a
place that sells gas, so of course he has to say no, I wasn't there. I was only at the IGA. I
only got snack cakes and pop. I didn't go anywhere that sells gas. Well, of course he's
gonna say that. So he goes and gets the gas.
"As Dorian and his friend are leaving, they see him carrying a gas can, a red, one
and a half to two gallon gas can, and walk back to the home. Officer Bulmer comes. He
talks to the defendant for a few minutes, leaves, goes to the park, and then, we see the
flames—or then they see the flames and respond to the fire.
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"The defendant made good on his threat that day. He said he was gonna 'burn that
MF'er down.' He said he was gonna 'torch the place.' And that's exactly what he did,
and I ask you to find him guilty of arson." (Emphases added)
At the outset, it is important to remember—as the district court appropriately
instructed the jury in this case—the arguments and statements of counsel are not
evidence. See State v. Cole, 37 Kan. App. 2d 633, 636-37, 155 P.3d 739 (2007). In
Kansas, prosecutors are given wide latitude in the language used during the presentation
of closing arguments, so long as the statements made are consistent with the evidence
admitted at trial. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). This wide
latitude includes making reasonable inferences drawn from the evidence. State v.
Haygood, 308 Kan. 1387, 1398, 430 P.3d 11 (2018). However, "[a] prosecutor may not
misstate the law applicable to the evidence presented, may not offer a personal opinion
about witness credibility, and may not shift the burden of proof to the defendant." State v.
Pribble, 304 Kan. 824, Syl. ¶ 6, 375 P.3d 966 (2016). Further, a prosecutor may not make
inflammatory remarks that improperly appeal to the jurors' sympathies or prejudices.
Holt, 300 Kan. at 992.
Nevertheless, it is once again incumbent on us "to consider a prosecutor's
comments in the context in which they are made, not in isolation." Haygood, 308 Kan. at
1399. In other words, we are not permitted to "isolate the challenged comments [but]
consider them in the context [in which] they were made." State v. Butler, 307 Kan. 831,
865, 416 P.3d 116 (2018). When viewed in context—and in light of the wide latitude
given to counsel—we do not find that the prosecutor committed error during closing
arguments. Rather, we find that the prosecutor's statements were fair arguments based on
the evidence presented at trial and the reasonable inferences that could be drawn from
such evidence. See State v. Peppers, 294 Kan. 377, 394-96, 276 P.3d 148 (2012).
13
As indicated above, the State presented considerable evidence to the jury regarding
Royer's activities prior to the fire, the threats that he had made, and the investigation of
the fire. This included evidence of Royer's threat to burn the car in which the two women
had been staying behind Hemmert's house. At one point, Royer even declared that unless
he received help from either Lawson or the police, he would "light that car on fire" and
"burn 'em out." Such evidence reasonably supports an argument by the prosecutor that
Royer would carry out his threat to set the car on fire to burn out the women.
We also find the prosecutor's statement that Royer was "fine with setting the fire at
the only entrance and exit" to the house—and that doing so could potentially trap
someone in the house—to be fair argument based on the evidence presented at trial. The
State presented photographs of the house, including the fire damage to the door. In
addition, Hemmert testified that there was only one door in and out of the house. The fire
investigator testified that in his opinion the origin of the fire was just to the right of the
front door and that it was intentionally set. Accordingly, we find that the evidence
presented was sufficient to support a reasonable inference that an intentionally set fire
near the only door of a dwelling could potentially trap a person inside.
We also find the prosecutor's argument regarding whether Royer went to the Kwik
Shop was fair based on the evidence presented at trial. Royer denied going anywhere that
sold gas on the day of the fire. Instead, he claimed to go to an IGA grocery store.
However, in a recorded interview with a fire investigator, Royer noticeably hesitated
before answering when the fire investigator asked whether he also went to the Kwik
Shop—which does sell gasoline—while he waited for the police to arrive.
The recording of the interview was admitted into evidence and is part of the record
on appeal. On the recording, Royer can be heard letting out a long "ummm" and pausing
three seconds before responding. When the investigator interjected that he needed Royer
14
to be honest with him, Royer is heard repeating the question before ultimately saying,
"No. I went to Mike's IGA." When coupled with the testimony that Royer had threatened
to set fire to Hemmert's house and was later seen carrying a gas can toward the house, it
is not unreasonable to conclude that Royer, in fact, hesitated because he did not want to
admit being at a place that sold gasoline shortly before the fire was set.
Having reviewed the prosecutor's statements and arguments in the context in
which they were made, we find that they were based on the evidence presented to the jury
and the reasonable inferences drawn therefrom. We also find that the prosecutor's
statements did not stray outside the wide latitude afforded to the State during closing
arguments. Consequently, we find no prosecutorial error.
Further, even if one or more of the prosecutor's statements or arguments were
considered to constitute error, we are firmly convinced that they were harmless,
particularly on account of the district court properly instructing the jury that the State
maintained the burden of proof, that the case must be decided only on the evidence
admitted at trial, and that the arguments of counsel were not evidence. Royer submits no
evidence or argument to suggest that the jury did not heed those instructions. Thus, we
conclude that there is no reasonable possibility that any of the alleged errors prejudiced
Royer's right to a fair trial.
Prior Criminal History
Finally, Royer argues that the district court's determination of his criminal history
score and the resulting sentence violated his constitutional right to a jury trial under
section 5 of the Kansas Constitution Bill of Rights. It is undisputed that Royer did not
present this issue to the district court. Instead, he presents it for the first time on appeal.
So, we must first determine whether this issue is properly before us.
15
As a general rule, unless an issue is first presented to the district court, it is not
preserved for appeal. State v. Cheffen, 297 Kan. 689, 696, 303 P.3d 1261 (2013). There
are three exceptions to the general rule that a party cannot raise a constitutional claim for
the first time on appeal. An appellate court may consider the new claim if: (1) it involves
a pure legal question arising on proved or admitted facts that's finally determinative of
the case, (2) considering it is necessary to serve the ends of justice or prevent the denial
of fundamental rights, or (3) the district court was right for the wrong reason. State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).
The right to a jury trial is a fundamental right under section 5 of the Kansas
Constitution Bill of Rights. State v. Rizo, 304 Kan. 974, 979-80, 377 P.3d 419 (2016).
This constitutional right is codified in K.S.A. 22-3403(1), which requires that all felony
cases be tried to a jury unless the defendant and prosecuting attorney—with the consent
of the district court—submit the matter to a bench trial. Here, although Royer did not
raise this issue before the district court, we may consider it nonetheless because it
implicates a claim to the fundamental right to a trial by a jury. See State v. Beaman, 295
Kan. 853, 856-58, 286 P.3d 876 (2012). Therefore, we find that a decision on the merits
would serve the ends of justice.
Turning to the merits, Royer suggests that when the Kansas Constitution—also
known as the Wyandotte Constitution—was enacted in 1859, "judicial findings of an
offender's prior convictions could not elevate the permissive punishment for a current
crime of conviction." However, he cites no legal or historical authority for this
proposition. Regardless, we note that this issue has been rejected by this court on several
occasions. See, e.g., State v. Smith, No. 121,267, 2020 WL 3022874, at *2-4 (Kan. App.
2020) (unpublished opinion); State v. Brown, No. 120,590, 2020 WL 1897361, at *7-8
(Kan. App. 2020) (unpublished opinion); State v. Billoups, No. 120,040, 2020 WL
1969356, at *17-20 (Kan. App. 2020) (unpublished opinion).
16
Further, Royer recognizes that a panel of this court rejected a similar argument—
and the Kansas Supreme Court denied review—in State v. Valentine, No. 119,164, 2019
WL 2306626, at *6 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1070(2019). In Valentine, the panel recognized that the Kansas Supreme Court has
consistently rejected similar challenges under the Sixth Amendment. As such, it is
incumbent on a defendant to provide authority showing that our Supreme Court would
interpret section 5 of the Kansas Constitution Bill of Rights to require jury findings that
the Sixth Amendment does not. 2019 WL 2306626, at *6.
Although Royer acknowledges the holding in Valentine, he argues that the case
was wrongly decided. Based on our review of Kansas law, we do not agree with Royer
that Valentine, or the other cases in which our court has decided this issue, were wrongly
decided. Instead, we find these decisions to be consistent with the Kansas Supreme
Court's historical interpretation of section 5 of the Kansas Constitution Bill of Rights to
be consistent with the United States Supreme Court's interpretation of the Sixth
Amendment to the United States Constitution.
"[A]t least for the past half-century, [the Kansas Supreme Court] has generally
adopted the United States Supreme Court's interpretation of corresponding federal
constitutional provisions as the meaning of the Kansas Constitution, notwithstanding any
textual, historical, or jurisprudential differences." State v. Lawson, 296 Kan. 1084, 1091,
297 P.3d 1164 (2013). We recognize that there are instances in which our Supreme Court
may interpret the Kansas Constitution as providing more rights than those granted in the
United States Constitution. See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 621,
440 P.3d 461 (2019). But we do not find this to be such a case.
In State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000), the Kansas Supreme
Court held that section 5 of the Kansas Constitution Bill of Rights is no more inclusive
than the Sixth Amendment to the United States Constitution. Although Conley has been
17
overruled on other grounds, we find our Supreme Court's rejection of the argument that
section 5 of the Kansas Constitution is broader than the Sixth Amendment remains good
law. See State v. Astorga, 299 Kan. 395-36, 324 P.3d 1046 (2014). As such, we find that
Royer's challenge under the Kansas Constitution fails because he provides no authority
showing that the Kansas Supreme Court interprets—or would interpret—section 5 of the
Kansas Constitution Bill of Rights to be more inclusive than the Sixth Amendment to the
United States Constitution.
It is undisputed that both the United States Supreme Court and the Kansas
Supreme Court have consistently held judicial fact-finding of a criminal defendant's prior
convictions is constitutionally permissible under the Sixth Amendment. See Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ([2000]); State v.
Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002). Thus, we find Royer's argument that
section 5 of the Kansas Constitution Bill of Rights should be interpreted to provide a
greater right than that set forth in the Sixth Amendment to the United States Constitution
to be unpersuasive.
Affirmed.
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