State v. Dunlap

1

No. 105,560

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KTORRI C. DUNLAP,
Appellant.


SYLLABUS BY THE COURT

1.
Interpretation of a statute is a question of law over which appellate courts have
unlimited review.

2.
K.S.A. 22-3421 requires the trial court to follow two separate steps in accepting a
jury verdict in a criminal case. First, the trial judge shall inquire whether the verdict read
in open court is the jury's verdict. Second, the trial judge must poll the jury if either party
requests that the jury be polled.

3.
The right to a unanimous jury verdict in Kansas is statutory but not constitutional.

4.
When the trial judge in a criminal case explicitly asks the parties if they want to
have the jury polled, which would accomplish the same purposes as having the trial judge
inquire into the accuracy of the verdict, and the defendant declines the request for polling,
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the appellate court should not consider a challenge to the procedure for accepting the
verdict for the first time on appeal based on concepts of waiver or invited error.

5.
Like most trial errors, any error by the trial court in failing to comply with K.S.A.
22-3421 is subject to harmless error analysis. Before a Kansas court can declare an error
harmless it must determine that the error did not affect a party's substantial rights,
meaning it did not affect the trial's outcome. If the error implicates a statutory right but
not a constitutional right, then before a Kansas court can declare the error harmless, the
court must be persuaded that there is no reasonable probability that the error affected the
outcome of the trial.

Appeal from Atchison District Court; MARTIN J. ASHER, judge. Opinion filed December 2, 2011.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., MALONE, J., and DANIEL L. HEBERT, District Judge
Retired, assigned.

MALONE, J.: Ktorri C. Dunlap was found guilty by a jury of aggravated robbery
and felony obstruction of official duty, and at the end of his trial, the trial judge failed to
ask the jury whether the verdict that was read in open court was the verdict of the jury.
K.S.A. 22-3421 states that a trial judge shall follow this procedure. We must decide
whether the trial judge's failure to comply with the statute constituted reversible error.
Under the facts of this case, we reject Dunlap's claim that he is entitled to a new trial
because of this error on two alternative grounds. First, the trial judge explicitly asked the
parties if they wanted to have the jury polled, which would have accomplished the same
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purposes as having the judge inquire into the accuracy of the verdict, and Dunlap's
counsel declined the request for polling. In such cases, appellate courts should not
consider a challenge to the procedure for accepting the verdict for the first time on appeal
based on concepts of waiver or invited error. Second, any error by the trial court in failing
to comply with K.S.A. 22-3421 is subject to harmless error analysis. Because we are
persuaded that the error did not affect Dunlap's substantial rights, we conclude the trial
court's failure to comply with K.S.A. 22-3421 constituted harmless error.

On May 29, 2010, at approximately 7 a.m., Damon Reynolds was working as a
clerk at the Surf & Go convenience store in Atchison. Reynolds was sweeping the
parking lot when a white Ford pickup truck pulled into the lot and parked on the south
side of the building. A man exited the truck and entered the convenience store, so
Reynolds followed the man into the store to serve him. Although Reynolds did not know
the man's name, he had seen him numerous times before and recognized him because of a
tattoo on his left cheek. Inside the store, the man asked Reynolds for a pack of Newport
cigarettes. Reynolds walked behind the counter to get the cigarettes, and he noticed that
the man was following him. When Reynolds turned around he saw a gun in the man's
hand. The man told Reynolds that he was not going to hurt him, but he wanted money.
The man took cash from the register and a carton of cigarettes. He left the store and got
back into the pickup truck which drove away from the parking lot. Surveillance cameras
captured images of these events.

Reynolds immediately reported the robbery to the police and gave a description of
the man and the white Ford pickup truck. Officer Joshua Sinclair spotted the truck
matching the description provided by Reynolds. Sinclair recognized the driver of the
truck as Sheila Vanwey. As the vehicle slowed down, a man jumped out of the passenger
side of the truck and ran into the backyard of a house. Sinclair shouted at the man to stop
and began to chase him on foot. During the chase, Sinclair recognized the man from
previous encounters as Dunlap. Reynolds eventually caught up with Dunlap and ordered
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him to the ground. Backup units then arrived and secured Dunlap. Officers searched the
area and located a vest Dunlap had been wearing as well as an open carton and several
unopened packages of cigarettes. Eventually, officers located a BB gun resembling a
handgun in the area where Dunlap had been arrested.

Following his arrest, Dunlap waived his Miranda rights and agreed to speak with
Officer Travis Eichelberger. Dunlap initially told Eichelberger that he could not
remember much that had happened. Eichelberger then showed Dunlap surveillance video
of the robbery and, after several viewings, Dunlap said, "I can't watch this anymore, it's
me." The State charged Dunlap with one count of aggravated robbery and one count of
obstruction of legal process or official duty. Prior to trial, Dunlap's counsel filed a motion
to determine competency. The district court entered an order for a mental examination,
and Dunlap was found competent to stand trial. After a preliminary hearing wherein
Reynolds and Sinclair testified for the State, Dunlap was bound over for trial.

A jury trial commenced on September 28, 2010. Reynolds identified Dunlap as the
man who robbed him at the convenience store. Sinclair identified Dunlap as the man he
chased on foot and arrested a short time after the robbery. Eichelberger testified about
Dunlap's incriminating statements during the interview. Vanwey also testified for the
State. She stated that on the morning of May 29, 2010, she gave Dunlap a ride in her
truck to the Surf & Go convenience store, and she waited in the truck while he went into
the store. Vanwey testified that when Dunlap returned he was carrying cigarettes and
money. Vanwey admitted she was afraid that Dunlap had robbed the store. The State
introduced evidence of the carton of cigarettes and the BB gun found in the area where
Dunlap was arrested. The State also introduced into evidence numerous surveillance
photographs clearly depicting Dunlap robbing Reynolds with a handgun.

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Dunlap did not testify at trial and he called no witnesses. After deliberating 21
minutes, the jury returned guilty verdicts on charges of aggravated robbery and
obstructing official duty. The trial judge read the verdicts in open court:

"THE COURT: All right.
"The Court will note the jury is all present, as are counsel and the
defendant.
"The jury has reached its verdict.
"The Court will read the verdict.
"No. 1.
"We, the jury, find the defendant guilty of the crime of aggravated
robbery.
"Signed by the Presiding Juror.
"No. 2.
"We, the jury, find the defendant guilty of the crime of obstructing
official duty.
"Signed by the Presiding Juror.
"Are there any requests of the Court to poll the jury, first by the State?
"MR. KUCKELMAN: No, Judge.
"THE COURT: Mr. Campbell?
"MR. CAMPBELL: No, Judge.
"THE COURT: All right.
"Ladies and gentlemen of the jury, this completes your jury service for today and,
hopefully, for the rest of your term."

The verdict forms reflecting the guilty verdicts were filed with the court, and the
judge ordered a presentence investigation (PSI) report. Dunlap later filed a motion for
acquittal notwithstanding the verdict and/or motion for new trial challenging the
sufficiency of the evidence and the fact that "no persons of color were on the jury."
Dunlap also filed a motion for durational departure. On November 1, 2010, the trial court
denied the posttrial motions. Dunlap's PSI report disclosed 15 prior convictions including
a prior conviction of aggravated robbery. Based upon Dunlap's criminal history, the trial
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court imposed the standard presumptive sentence of 216 months' imprisonment. Dunlap
timely appealed his convictions.

Dunlap's brief states one issue: "The district court erred when it accepted the
jury's verdict without inquiring into the accuracy of the verdict." Dunlap argues that
K.S.A. 22-3421, which sets forth the procedure for accepting a jury verdict in a criminal
case, requires that an inquiry be made as to whether the verdict read in open court is the
jury's verdict and that the district court's failure to do so constituted reversible error.
Dunlap has waived and abandoned any other claim of error that he raised in district court.
See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).

Resolution of this issue requires this court to interpret K.S.A. 22-3421.
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Furthermore, appellate
courts exercise de novo review over issues of jury unanimity. State v. Dayhuff, 37 Kan.
App. 2d 779, 784, 158 P.3d 330 (2007).

K.S.A. 22-3421 sets forth the procedure for the district court to accept a jury
verdict in a criminal case and provides:

"The verdict shall be written, signed by the presiding juror and read by the clerk to the
jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury
must be sent out again; but if no disagreement is expressed, and neither party requires the
jury to be polled, the verdict is complete and the jury discharged from the case. If the
verdict is defective in form only, it may be corrected by the court, with the assent of the
jury, before it is discharged." (Emphasis added.)

We interpret K.S.A. 22-3421 as requiring the trial court to follow two separate
steps in accepting a jury verdict. First, the trial judge shall inquire whether the verdict
read in open court is the jury's verdict. Second, the trial judge must poll the jury if either
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party requests that the jury be polled. At Dunlap's trial, the judge complied with the
second step of K.S.A. 22-3421 by asking both counsel if they desired to have the jury
polled. However, the judge failed to satisfy the first step by inquiring whether the verdict
read in open court was the jury's verdict.

Whether the trial judge's failure to inquire into the accuracy of the verdict
constitutes reversible error was addressed by this court in State v. Johnson, 40 Kan. App.
2d 1059, 198 P.3d 769 (2008). In Johnson, the defendant was charged with felony driving
under the influence of alcohol. At trial, the defendant asserted that he was fully capable
of driving on the evening in question, contrary to the arresting officer's testimony. Two
additional witnesses who had been with the defendant earlier in the evening testified that
they did not believe the defendant was too intoxicated to drive that night. The jury asked
several questions during deliberations, including what would happen if the jury could not
reach a unanimous verdict. The trial court ordered the jury to continue deliberations, and
the jury later returned a guilty verdict. In accepting the verdict, the judge did not inquire
whether the verdict read in open court was the jury's verdict. Also, the judge did not ask
the parties if they wanted to have the jury polled, and neither party made such a request.
In support of a motion for new trial, the defendant submitted affidavits from two jurors
who indicated that they did not feel the verdict was unanimous. Both jurors stated that
they felt "rushed at the end" to agree with a guilty verdict. 40 Kan. App. 2d at 1080-81.
The trial court denied the motion for new trial.

On appeal, the defendant argued the trial court erred in failing to inquire into the
accuracy of the jury's verdict and in failing to ask whether the parties wanted to have the
jury polled. As to polling the jury, the Johnson court determined that the trial court is not
required to ask whether the parties would like the jury polled; rather, the parties carry the
burden to request a poll. 40 Kan. App. 2d at 1075. Therefore, the Johnson court held that
the defendant waived his right to have the jurors individually polled by failing to request
the poll. 40 Kan. App. 2d at 1075.
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Next, the court turned to the defendant's argument that the trial court erred when it
failed to inquire into the accuracy of the jury's verdict. The Johnson court noted that until
the verdict is properly received and recorded, a juror is at liberty to withdraw his or her
consent to the verdict and express disagreement with the verdict in open court. 40 Kan.
App. 2d at 1076-77. Thus, the court determined that until the trial court properly inquires
and learns that the verdict is truly unanimous, the verdict is incomplete. 40 Kan. App. 2d
at 1077. The court went on to analyze whether the trial court's failure to make the
required inquiry constituted reversible error. The court noted there was evidence in the
record which called into question the unanimity of the jury's verdict—including questions
by the jury during deliberations asking what would happen if the jury could not reach a
unanimous verdict and two posttrial affidavits from jurors indicating that they did not feel
the verdict was truly unanimous. Based on the record, the Johnson court concluded that
the trial court's failure to inquire into the accuracy of the verdict as required under K.S.A.
22-3421 constituted reversible error "in this case." 40 Kan. App. 2d at 1081.

This court revisited the same issue in State v. Gray, 45 Kan. App. 2d 522, 249
P.3d 465, rev. denied 292 Kan. __ (2011). In Gray, the jury foreman read the verdicts
aloud in open court, finding the defendant guilty of one count of aggravated assault of a
law enforcement officer and three alternative counts of fleeing and attempting to elude a
police officer. The trial judge asked the parties if they wished to have the jury polled, and
both parties declined. However, the judge did not ask the jury whether the verdict read in
court was the jury's verdict. 45 Kan. App. 2d at 524. On appeal, the defendant contended
that the trial court erred in failing to make the appropriate inquiry of the jury as required
under K.S.A. 22-3421. The State did not dispute that the district court failed to make the
inquiry; rather, the State attempted to distinguish the case from Johnson in that there was
nothing in the record to raise concerns about the unanimity of the verdict.

The Gray court recognized the distinction but stated that K.S.A. 22-3421 requires
the inquiry even when the parties waive polling in order to "ensure a defendant's
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constitutional right to a unanimous verdict and to safeguard the concept of finality with
respect to the jury verdict." (Emphasis added.) 45 Kan. App. 2d at 524. The Gray court
went a step further than the Johnson court and found that, even when there were no
concerns about the unanimity of the jury's verdict, the trial court's failure to make the
required inquiry was reversible error. 45 Kan. App. 2d at 524-25. In other words, the
Gray court held that failure to strictly comply with the requirements of K.S.A. 22-3421
constituted structural error requiring reversal and there was no need to analyze whether
the defendant suffered prejudice by the error.

Since the Gray opinion was published in March 2011, numerous direct appeals
from jury trials have been filed in this court requesting the reversal of convictions based
on the trial court's failure to inquire into the accuracy of the verdict. On the November
2011 docket alone, this court has three cases raising this issue. It is already apparent to
this court that the error committed by the trial court in Gray was not an isolated incident,
and that perhaps many trial judges in Kansas do not strictly comply with the provisions of
K.S.A. 22-3421 in accepting a jury verdict. The structural error approach adopted by this
court in Gray has far-reaching implications, not only in pending direct appeals but also in
prior cases where the defendant may be entitled to postconviction relief. The State urges
this court to reject the structural error approach adopted in Gray when a trial court fails to
inquire into the accuracy of a jury verdict. We note that the Kansas Supreme Court has
previously held that one panel of the Court of Appeals is not bound by another panel's
decision. State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010).

The State correctly notes that Dunlap is raising this issue for the first time on
appeal. Dunlap did not object when the district court released the jury without inquiring
into the accuracy of its verdict. Furthermore, Dunlap did not raise the issue in his motion
for new trial. Nonetheless, there are several exceptions to the general rule that a new legal
theory may not be asserted for the first time on appeal, including the following: (1) the
newly asserted theory involves only a question of law arising on proved or admitted facts
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and is finally determinative of the case; (2) consideration of the theory is necessary to
serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment
of the district court may be upheld on appeal despite its reliance on the wrong ground or
assignment of a wrong reason for its decision. State v. Dukes, 290 Kan. 485, 488, 231
P.3d 558 (2010). Dunlap argues that this court should consider the issue on appeal
because it raises solely a question of law and does not rely on disputed facts and because
it involves the fundamental right to a unanimous jury verdict.

In State v. Holt, 285 Kan. 760, 175 P.3d 239 (2008), the Kansas Supreme Court
addressed whether a trial court's failure to strictly comply with the requirements of
K.S.A. 22-3421 should be considered as an issue for the first time on appeal. In Holt, the
defendant was charged with first-degree premeditated murder and conspiracy to commit
murder. At one point during deliberations, the jury notified the trial court that it was
unable to reach a verdict on one of the counts. Nevertheless, the jury continued to
deliberate and after the trial judge answered additional questions, the jury returned a
verdict of guilty on both counts. The trial judge asked the presiding juror whether the
verdict read in court was the verdict of the jury, and the presiding juror said yes. At the
request of defense counsel, the trial judge polled the jury. In doing so, the judge asked
each juror, "'Is this the verdict of the jury?'" rather than asking each juror, "'Is this your
verdict?'" 285 Kan. at 766. The defendant did not object at trial to the polling procedure.

On appeal, the defendant claimed the trial court erred by failing to properly poll
the jury according to K.S.A. 22-3421. In deciding whether to address the issue for the
first time on appeal, the Supreme Court noted that the right to a unanimous jury verdict in
Kansas is statutory but not constitutional. 285 Kan. at 766. The court recognized the
importance of giving the trial court the opportunity to correct any alleged trial error and
determined that the defendant's failure to object to the polling procedure at trial barred the
defendant from raising the issue on appeal. 285 Kan. at 768-69. The court also stated that
under the facts of the case, consideration of the polling issue for the first time on appeal
11

was not warranted under the "ends of justice" exception because the defendant failed to
show that the purported error actually harmed him. 285 Kan. at 770. The court concluded
its discussion by stating that while trial courts do not have to be "letter perfect" in their
polling procedures and language, the better practice is to poll the jury in such a way as to
ensure that each juror is answering for himself or herself, e.g., by asking each juror, "'Is
this your verdict?'" 285 Kan. at 770-71.

Although the precise issue in Holt was not the same as the issue before this court,
the Supreme Court's language in that opinion provides this court with some authority to
reject Dunlap's claim simply because he is raising the issue for the first time on appeal.
Dunlap did not object when the trial court failed to inquire about the jury's verdicts. Had
Dunlap objected to the procedure, the trial court certainly could have corrected its error.
More importantly, Dunlap's counsel specifically denied the judge's request to poll the
jury. An identical situation was addressed by the South Dakota Supreme Court in State v.
Hoover, 89 S.D. 608, 620, 236 N.W.2d 635 (1975). South Dakota has a statute similar to
K.S.A. 22-3421 which requires that a verdict must be read to the jury and inquiry made
whether it is the jury's verdict. See S.D. Codified Laws Ann. § 23-45-26. In Hoover, the
judge made no inquiry as to the accuracy of the jury's verdict, but the judge specifically
asked the parties if they wanted to have the jury polled and both counsel said no. The
Hoover court stated that the trial court's failure to inquire into the verdict is generally
reversible error. But the court held the defendant waives the statutory right when he or
she chooses not to poll the jurors, and in such instance the defendant will not be allowed
to raise the issue for the first time on appeal:

"We do not deny Appellant's proposition that the requirement that the jury affirm
the verdict is long established and failure to comply with the requirement is reversible
error. This is a safeguard built into our trial procedure for obvious reasons. It affords the
jurors an opportunity to express their dissent from a written verdict in which they do not
concur when it is delivered and read in open court. However, in the factual setting of this
trial the Court offered both sides full opportunity to poll the jury in order to ascertain with
12

greater certainty the accuracy of the verdict and both sides declined to do so. Having thus
affirmatively waived his statutory right Defendant will not now be heard to make this
objection on appeal." 89 S.D. at 619.

We must decide whether Dunlap should be allowed to challenge the procedure for
accepting the verdicts when he declined the trial court's request to have the jury polled. In
Gray, this court found that K.S.A. 22-3421 requires the trial court to inquire whether the
jury agrees with the verdict even when the parties waive polling in order to ensure a
defendant's constitutional right to a unanimous verdict and to safeguard the concept of
finality with respect to the jury verdict. 45 Kan. App. 2d at 524. Although the court in
Gray mistakenly referred to the right to a unanimous verdict as a constitutional right
rather than a statutory right, no one can dispute the notion that the right to a unanimous
verdict is a fundamental right in Kansas that must be protected by the courts. But the
Gray court overlooked the very important point that polling the jury accomplishes the
same purposes as having the trial judge inquire into the accuracy of the verdict, i.e.,
ensuring jury unanimity and finality of the verdict. Here, the trial court specifically asked
the parties if they wanted to have the jury polled and Dunlap's counsel said no. We
believe this fact has important implications as to whether this court should consider
Dunlap's challenge to the procedure for accepting the verdict for the first time on appeal.

Under K.S.A. 22-3421, the trial court is only required to poll the jury if either
party requests that the jury be polled. The parties carry the burden of making this request.
Johnson, 40 Kan. App. 2d at 1075. But unlike the trial judge in Johnson, the judge at
Dunlap's trial explicitly asked the parties if they wanted to have the jury polled. The
parties were present in the courtroom and had the opportunity to observe the demeanor of
the jurors while the verdicts were read in open court. As soon as the verdicts were read,
the judge asked the parties if they wanted to have the jury polled and defense counsel
replied, "No, judge." Had Dunlap accepted the trial judge's invitation to have the jury
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polled, any problems with the accuracy of the verdict would have been discovered before
the jury was discharged from the case.

We hold that when the trial judge in a criminal case explicitly asks the parties if
they want to have the jury polled, which would accomplish the same purposes as having
the trial judge inquire into the accuracy of the verdict, and the defendant declines the
request for polling, the appellate court should not consider a challenge to the procedure
for accepting the verdict for the first time on appeal based on concepts of waiver or
invited error. Here, the trial judge explicitly asked the parties if they wanted to have the
jury polled and Dunlap's counsel said no. Polling the jury would have achieved the
purpose of ensuring Dunlap's statutory right to a unanimous verdict. Likewise, polling the
jury would have safeguarded the concept of finality with respect to the jury verdict. By
polling the jury, each juror would have been given the opportunity to express
disagreement with or dissent from the verdict in open court. Because Dunlap declined the
trial court's explicit request to have the jury polled, which would have accomplished the
same purposes as having the trial judge inquire into the accuracy of the verdict, we
conclude he is not allowed to challenge the procedure for accepting the verdict for the
first time on appeal.

Although we could end our analysis here, we will also address the State's
alternative argument that even if the trial court erred by failing to inquire into the
accuracy of the verdict, such error was harmless in Dunlap's case. Generally, errors at any
stage of trial proceedings are subject to harmless error analysis under K.S.A. 2010 Supp.
60-261, which provides:

"Unless justice requires otherwise, no error in admitting or excluding evidence, or any
other error by the court or a party, is ground for granting a new trial, for setting aside a
verdict or for vacating, modifying or otherwise disturbing a judgment or order. At every
14

stage of the proceeding, the court must disregard all errors and defects that do not affect
any party's substantial rights." (Emphasis added.)

Our Supreme Court has set forth the following test for determining whether an
error is harmless:

"[B]efore a Kansas court can declare an error harmless it must determine that the error
did not affect a party's substantial rights, meaning it will not or did not affect the trial's
outcome. The degree of certainty by which the court must be persuaded that the error did
not affect the outcome of the trial will vary depending on whether the error implicates a
right guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011).

Not all errors are subject to this harmless error analysis. Structural error occurs in
very limited circumstances where the error "'affect[s] the framework within which the
trial proceeds'" and thus defies analysis by harmless error standards. Boldridge v. State,
289 Kan. 618, 627, 215 P.3d 585 (2009) (quoting Arizona v. Fulminante, 499 U.S. 279,
309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991]). Errors which have been found to be
structural include the complete denial of the right to counsel, the denial of the right to
public trial, and the denial of the right to trial by jury. Boldridge, 289 Kan. at 627-28. But
other errors of constitutional magnitude are simply errors in the trial process itself and are
thus subject to harmless error analysis. Fulminante, 499 U.S. at 310.

The failure of the trial court to inquire into the verdict does not affect the
framework of the entire trial and does not appear consistent with structural error. In
Kansas, the right to a unanimous jury verdict in criminal cases is statutory rather than
constitutional, as incorrectly stated by the court in Gray. 45 Kan. App. 2d at 524; see
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Holt, 285 Kan. at 766 (right to a unanimous jury verdict is not constitutional but
statutory). This fact alone suggests that a trial court's failure to comply with the
requirements of K.S.A. 22-3421 does not constitute structural error. Moreover, the
Kansas Supreme Court has held that in some instances a trial court's failure to comply
with statutes that are mandatory in nature is subject to harmless error analysis. See, e.g.,
State v. Bell, 266 Kan. 896, 919-20, 975 P.2d 239 (1999) (trial court's failure to comply
with mandatory provision of K.S.A. 22-3420[3] by answering jury questions in open
court is subject to harmless error); State v. Borders, 255 Kan. 871, 881, 879 P.2d 620
(1994) (failure to comply with a mandatory statute such as K.S.A. 22-3424 is error, but
not reversible error unless prejudice to the substantial rights of the defendant is shown).

At least two other factors support the conclusion that the trial court's failure to
inquire into the verdict does not constitute structural error. First, our Supreme Court
stated in Holt that "letter perfect" compliance with jury polling procedures under K.S.A.
22-3421 is not required. 285 Kan. at 770. The Holt court's failure to consider the polling
issue for the first time on appeal because the defendant failed to show that the purported
error actually harmed him is contrary to the notion that failure to comply with K.S.A. 22-
3421 is always structural error. Second, juries are normally instructed that their verdicts
must be unanimous, as was the case here, and juries are presumed to have followed
instructions. State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). This court would
be required to ignore this presumption in order to find reversible error in Dunlap's case
absent any indication that the jury's verdict was not unanimous.

For these reasons, we agree with the State that any error by the trial court in failing
to comply with K.S.A. 22-3421 is subject to harmless error analysis. Before a Kansas
court can declare an error harmless it must determine that the error did not affect a party's
substantial rights, meaning it did not affect the trial's outcome. K.S.A. 2010 Supp. 60-
261; Ward, 292 Kan. at 565. If the error implicates only a statutory right, as in this case,
then before a Kansas court can declare the error harmless, the court must be persuaded
16

that there is no reasonable probability that the error affected the outcome of the trial. 292
Kan. at 565. In applying harmless error analysis to a violation of K.S.A. 22-3421, the
appellate court should consider the sufficiency of the evidence supporting the verdict.
More importantly, the appellate court should consider whether there is anything in the
record to raise doubt that the verdict was unanimous.

Applying harmless error analysis to Dunlap's case, we first note that the guilty
verdicts were supported by overwhelming evidence. Reynolds positively identified
Dunlap as the man who committed the robbery, and this testimony was confirmed by
Vanwey who was driving the getaway vehicle. Sinclair apprehended Dunlap a short time
after the robbery was committed, and evidence from the robbery was found in Dunlap's
possession. Also, surveillance cameras captured images of the robbery. Dunlap admitted
to Eichelberger that he was the person depicted in the surveillance photographs. More
importantly, unlike the situation in Johnson, there is no indication in the record on appeal
to raise any doubt that the jury verdict at Dunlap's trial was unanimous. The jury
deliberated for 21 minutes before reaching the verdicts, no questions were submitted by
the jury during deliberations, and Dunlap has come forward with no juror affidavits
expressing doubts about the integrity of the verdicts.

Based on the record on appeal, we are persuaded that there is no reasonable
probability that the trial court's failure to inquire into the accuracy of the jury verdict
affected the outcome of Dunlap's trial. Accordingly, even if the issue is properly
preserved for appeal, we conclude that the trial court's failure to comply with the
requirements of K.S.A. 22-3421 amounted to harmless error in this case.

Affirmed.