State v. Ellmaker

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,110

STATE OF KANSAS,
Appellee,

v.

ANDREW RAMEY ELLMAKER,
Appellant.


SYLLABUS BY THE COURT

1.
Where a trial objection to a jury instruction is different from the argument presented on
appeal, a clearly erroneous standard of review applies.

2.
An instruction is clearly erroneous only if the reviewing court is firmly convinced there is
a real possibility the jury would have rendered a different verdict if the trial error had not
occurred. To reach this conclusion, an appellate court examines the instructions as a whole,
rather than isolates any one instruction, and determines if the instructions properly and fairly
state the law as applied to the facts of the case.

3.
Under K.S.A. 22-3414(3), a party cannot allege error arising from an instruction that the
party requested.

4.
An instruction containing a permissive inference does not relieve the State of its burden
because the State is still required to convince the jury that an element, such as intent, should be
inferred based on the proven facts.


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5.
Instructing the jury that another trial would be a burden on both sides is error.

6.
Appellate courts have unlimited review over questions involving the existence of
jurisdiction.

7.
Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor
constitutional right.

8.
While K.S.A. 38-1681 of the Kansas Juvenile Justice Code precludes an appeal of an
order waiving juvenile status when the juvenile has consented to the waiver, it does not preclude
an appeal if the judge failed to follow the statutory requirements for the waiver.

9.
Under K.S.A. 38-1681, if a juvenile consents to an order waiving juvenile status and
authorizing prosecution as an adult, an appellate court does not have jurisdiction to consider the
issues related to the waiver proceeding or to the judicial determination to waive juvenile
jurisdiction even if a district court fails to inform a juvenile of the items listed in K.S.A. 38-
1636(c)(2).

10.
The requirement in K.S.A. 22-3201(c) that a complaint, information, or indictment allege
facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale
(the crime severity) does not require the State to allege the aggravating factors that are used as a
basis to impose a hard 50 life sentence under K.S.A. 21-4635.



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11.
Kansas' hard 50 sentencing scheme under K.S.A. 21-4635 is not unconstitutional under
Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2005); Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); or Jones v. United States, 526
U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999).

12.
Cumulative trial errors, when considered collectively, may be so great as to require
reversal of a defendant's convictions. The test is whether the totality of circumstances
substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error
may be found under this cumulative effect rule, however, if the evidence is overwhelming
against the defendant.

Appeal from Johnson district court; BRENDA M. CAMERON and PETER V. RUDDICK, judges. Opinion filed
December 4, 2009. Affirmed.

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney,
and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Andrew Ramey Ellmaker, a juvenile who was certified to stand trial as an
adult, appeals his convictions of premeditated first-degree murder and aggravated battery. He
also appeals his sentence of life imprisonment without parole for 50 years. He raises several
issues that we have taken the liberty to rephrase to reflect the parties' arguments and to reorder
for ease of discussion: (1) Did the district court err by giving an instruction regarding the
definition of criminal intent as it related to premeditated first-degree murder? (2) Did the district
court err by giving an Allen-type instruction to the jury (see Allen v. United States, 164 U.S. 492,
41 L. Ed. 528, 17 S. Ct. 154 [1896])? (3) Where a juvenile stipulates to the evidence regarding a
waiver of juvenile jurisdiction, can an appellate court under K.S.A. 38-1681 consider whether
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the district court erred in authorizing the prosecution of the defendant as an adult without first
submitting to a jury the question of whether the facts supported the court's certification decision?
(4) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an
appellate court consider whether the district court erred in certifying the defendant for
prosecution as an adult without complying with K.S.A. 38-1636(c)(2), the statute in effect at the
time of the offenses and certification? (5) Were the defendant's due process rights violated
because the criminal complaint did not specify the underlying aggravating factors supporting a
hard 50 life sentence? (6) Is Kansas' hard 50 sentencing scheme unconstitutional? and (7) Did
cumulative errors deprive the defendant of a fair trial?

We reject most of Ellmaker's arguments, finding merit only in his contention that the
Allen-type instruction was erroneous. That error, however, was not reversible, and we therefore
affirm Ellmaker's convictions and his hard 50 life sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Ellmaker's convictions arise from the murder of his social worker, Teri Zenner, and the
aggravated battery of his mother, Mary Susan Ellmaker (Sue). When the crimes occurred in
August 2004, Ellmaker was 17 years old and a senior in high school. He had a long history of
mental "dysfunction," dating back to his early childhood. Ellmaker had been diagnosed with
having schizotypal personality, which is a personality trait containing some elements of
schizophrenia. As part of his treatment regimen, Ellmaker was assigned a social worker through
the Johnson County Mental Health Center, and Zenner had served in that role for about a year.

On the day of the crime, Zenner came to Ellmaker's home for an after-school visit.
Initially, Ellmaker and Zenner were the only ones in the home. Consequently, most of what the
jury learned about the events came from Ellmaker's statements to police. These statements were
made several hours after the crimes were committed and after Ellmaker waived his rights under
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890
(1966). Recordings of the police interviews were played to the jury.

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According to Ellmaker, when Zenner arrived she indicated the meeting would be short.
She quickly completed some paper work for Ellmaker to sign and then prepared to leave. But
Ellmaker did not want her to leave, and he asked her to go upstairs to his bedroom. Ellmaker
told the detective he had a reason for not allowing Zenner to leave, but he did not want to say
what it was. Eventually Ellmaker "convinced" Zenner to go to his bedroom.

Once there, Ellmaker pulled out his sharpest knife, which he described as a sharpened
chef's knife. Zenner told him she was scared, needed air, and wanted to leave. She told
Ellmaker that she would not report the incident, but he told the detective, "I knew she was going
to go to the police about me holding her at knife point in my room so I did it."

According to Ellmaker, he "did it" when his mother Sue came home earlier than he
expected, approximately 30 minutes after Ellmaker and Zenner had gone into his bedroom. He
explained that Zenner was crying loudly when he heard his mother come into the house. Sue
testified, however, that she did not hear the crying when she first entered the house. But, after
just a few minutes, she went back to her car briefly, reentered the house, and at that point heard
Zenner crying. Sue yelled for her son to come downstairs. When nothing happened, Sue
persisted, telling Ellmaker numerous times that she wanted both of them to come down. At one
point, Sue threatened to call the police, and Ellmaker replied, "When?" Giving Ellmaker until
the count of three to come downstairs, Sue began counting down, "Three, two, one."

When Sue got to "one," Zenner sprang for the door. As she did, Ellmaker stabbed her in
the throat. Ellmaker told the detective he "just didn't care." Despite the wound, Zenner escaped;
she came running out of the bedroom and down the stairs. Ellmaker followed and continued
stabbing her+. He explained that "one [stab] came" and "then all the others had to come."

When Ellmaker and Zenner got to the bottom of the stairs, Sue placed herself between
Zenner and Ellmaker, yelling for Ellmaker to stop. All three tumbled to the floor, and Sue rolled
onto Zenner to protect her. Ellmaker stabbed Sue four times in the back, once in the chest, and
once in the right arm; he also slashed her ear. Ellmaker stopped stabbing at them when the knife
bent.
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At that point, Sue ran next door to get help and call 911. Meanwhile, Ellmaker returned
to his bedroom, turned on some music, and grabbed his chainsaw from the closet. He explained
to the detective that he followed the instructions printed on the chainsaw's box that detailed
seven steps for starting and operating the chainsaw. Ellmaker then used the chainsaw to almost
sever Zenner's left forearm and her neck. He also slashed her head, back, and right hip. At this
point, the chain broke which, according to Ellmaker, caused him to be "pissed off" because he
had recently bought the chainsaw.

After using the chainsaw, Ellmaker tried to commit suicide by ingesting a variety of pills.
He then left the house with two pellet guns and tried to leave in Zenner's vehicle. When he had
trouble getting the car to start, he took gasoline from the garage, poured it on the vehicle, and set
it on fire. Ellmaker ran into the street as police arrived. The police ordered him to drop his
weapons, which he did. As Ellmaker was being handcuffed, he spontaneously stated, "I just
killed my therapist with a chainsaw," and "I cut her down the back, on the arm, [and] I cut her
leg off. I don't know if I cut her head off or not."

Because Ellmaker had cut one of his fingers, officers sent him by ambulance to the
emergency room at a local hospital where an emergency room physician stitched the finger. The
physician testified that he asked Ellmaker how he injured his finger, and Ellmaker replied he was
not exactly sure how it happened. Ellmaker reported that he had stabbed his social worker in the
neck and then chased her down the hall, stabbing her. He also reported that they fell down the
stairs, that he had stabbed his mother, and that at some time during these events he cut his finger.
Ellmaker told the physician that after the stabbings stopped, he turned and saw Zenner on the
floor and "knew what he had to do." He then "went to get his chainsaw."

Still at the hospital, Ellmaker was interrogated by Sergeant Russell Stamer. After being
Mirandized and signing the waiver, Ellmaker agreed to speak to Stamer. Because of the
circumstances at the hospital, Stamer conducted two interviews over the course of approximately
2 hours. These are the recorded interviews that were played for the jury.

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In addition, as part of the investigation, the police executed a search warrant and the
coroner performed an autopsy. In executing the search warrant, the police found several knives,
a hatchet, an ax, two machetes, and four small ropes in Ellmaker's bedroom. Some of these
items were hidden from view, but others, including the ax, were clearly visible. The autopsy
revealed Zenner suffered six stab wounds, several of which would have been fatal or potentially
fatal. According to the coroner, the likely cause of death was a compound stab wound to the
throat. One pathway was 4 inches deep and went through the pulmonary artery, the right
chamber of the heart, and the aorta. After suffering this stabbing, Zenner had only seconds to
live. In addition, the coroner documented stab wounds to both lungs that were potentially fatal
and other nonfatal wounds to her hand and thigh. Most likely, Zenner was dead before Ellmaker
used the chainsaw, which inflicted injuries that would otherwise have caused death, including
near decapitation.

Ellmaker was charged in juvenile court with premeditated first-degree murder and
aggravated battery. As will be discussed in more detail, based in part on a defense stipulation,
the district court waived juvenile jurisdiction. At trial, after Ellmaker was certified for
prosecution as an adult, defense counsel conceded that Ellmaker's killing of Zenner was
intentional, but he argued that it was not premeditated. The jury convicted Ellmaker as charged.
He now brings a timely appeal.

I. JURY INSTRUCTION ON CRIMINAL INTENT

As his first issue on appeal, Ellmaker claims the district court erred in instructing the jury
with Pattern Instructions for Kansas (PIK) Crim. 3d 54.01 (inference of intent), over defense
counsel's objection. PIK Crim. 3d 54.01 was used by the district court as the basis for
Instruction 10, which states:

"Ordinarily, a person intends all of the usual consequences of his voluntary acts. This
inference may be considered by you along with all the other evidence in the case. You may accept
or reject it in determining whether the State has met its burden to prove the required criminal
intent of the defendant. This burden never shifts to the defendant." (Emphasis added.)

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Ellmaker's objection is two-pronged, as he contends the presumption contained within the
instruction impermissibly lowered the State's burden to prove the specific intent and
premeditation elements of the premeditated first-degree murder count.

A. Standard of Review

The parties disagree on the standard of review to be applied to our analysis of this issue.
The standard of review for criminal jury instructions is primarily defined by K.S.A. 22-3414(3),
which states in part:

"No party may assign as error the giving or failure to give an instruction, including a
lesser included crime instruction, unless the party objects thereto before the jury retires to consider
its verdict stating distinctly the matter to which the party objects and the grounds of the objection
unless the instruction or the failure to give an instruction is clearly erroneous." (Emphasis added.)

Thus, the standard of review depends on whether a party states a specific objection to the
giving of an instruction. Here, Ellmaker's counsel objected to Instruction 10. Nevertheless, the
State argues a clearly erroneous standard of review applies because Ellmaker stated a different
objection at trial than the issue he raises on appeal. In other words, using the terminology of the
statute, Ellmaker did not "distinctly" state "the grounds of the objection" that he advances on
appeal.

The record substantiates the State's argument. In fact, PIK Crim. 3d 54.01 or a similar
instruction was proposed by both parties in pretrial filings. Nevertheless, at the instructions
conference, defense counsel argued that giving Instruction 10 would be "inappropriate" and
objected to the inclusion of the instruction based on the premise that the instruction constituted
"burden shifting." Despite the objection, the district court decided to give the instruction in light
of this court's repeated rejection of the burden-shifting argument and past approval of PIK Crim.
3d 54.01. See, e.g., State v. Martinez, 288 Kan. 443, 452, 204 P.3d 601 (2009); State v. Woods,
222 Kan. 179, 185-86, 563 P.2d 1061 (1977).

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On appeal, rather than make the burden-shifting argument asserted at trial, Ellmaker
argues the instruction lowered and even negated the State's burden. At oral argument, Ellmaker's
appellate counsel attempted to minimize the difference between the objections, arguing the effect
of both arguments was essentially the same and the two objections were functionally equivalent.

We disagree. While the focus is on the State's burden of proof, the concepts and legal
principles that relate to the argument of whether a burden is shifted to a defendant are different
than those that relate to defining and imposing the State's burden of proof in a criminal case.
Further, it is important to remember that the purpose of requiring an objection is to allow the
district court to correct an error, if one occurred. E.g., State v. Crane, 260 Kan. 208, 218, 918
P.2d 1256 (1996). Here, the district court considered authorities related to the specific objection
raised by Ellmaker during the instruction conference, but the district court had no opportunity to
consider the argument now being made. Under similar circumstances where a trial objection to a
jury instruction was different from the appellate issue, this court has applied the clearly
erroneous standard of review. See, e.g., State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007
(1995). For these reasons and based on these authorities, we conclude the clearly erroneous
standard of review applies to this issue.

The clearly erroneous standard of review under K.S.A. 22-3414(3) is well known: "An
instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real
possibility the jury would have rendered a different verdict if the trial error had not occurred."
Martinez, 288 Kan. 443, Syl. ¶ 9; see State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009);
State v. Overstreet, 288 Kan. 1, 9-10, 200 P.3d 427 (2009). In reviewing jury instructions for
error, we examine the instructions as a whole, rather than isolate any one instruction, and
determine if the instructions properly and fairly state the law as applied to the facts of the case.
See State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009); State v. Edgar, 281 Kan. 47, 54, 127
P.3d 1016 (2006).





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B. Specific Intent

Applying this standard of review, we examine the first prong of Ellmaker's argument, i.e.,
that Instruction 10 "eroded" the specific intent element by allowing the State to prove merely that
he committed the voluntary act of stabbing Zenner's throat. He argues that once the State proved
he had stabbed Zenner, the jury could conclude he intended to kill her because death is a natural
consequence of stabbing someone in the throat. The result, he asserts, is that the State was
relieved of its burden of proving intent beyond a reasonable doubt. We do not reach the
substance of this issue, however, because Ellmaker's own arguments to the jury and his requests
for jury instructions undercut his argument.

The most significant undercutting of Ellmaker's instruction argument results from the
defense's trial concession that Ellmaker intended to kill Zenner. For instance, during closing
arguments, defense counsel told the jury that Ellmaker "struck down with the knife intentionally
and purposefully with intent to kill." He also argued that Ellmaker committed an intentional act,
which was an "instantaneous reaction." In addition, defense counsel argued that the jury should
convict Ellmaker of the lesser offense of intentional second-degree murder rather than first-
degree murder because of the lack of premeditation. Hence, premeditation, or the lack thereof,
was the focus of Ellmaker's theory of defense, and Ellmaker's intent to kill was not a disputed
issue as evidenced by his own arguments.
Ellmaker's argument is also undercut because, if there was confusion regarding intent, it
was at least partially created by Ellmaker's request to give PIK Crim. 3d 54.01-A, the instruction
on general intent. This instruction was requested by Ellmaker during the instruction conference
after the district court mentioned the instruction but immediately questioned whether giving it
would be appropriate. In response, the State indicated it did not "have any problem with it," and
defense counsel responded, "I request it." On appeal, Ellmaker defends the use of the instruction
because it provides a definition of intent that is consistent with K.S.A. 21-3201, which states, in
part: "(b) Intentional conduct is conduct that is purposeful and willful and not accidental. As
used in this code, the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose' are included within
the term 'intentional.'"
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PIK Crim. 3d 54.01-A does not end with this definition, however. It also states: "Intent
or lack of intent is to be determined or inferred from all the evidence in the case." Thus, though
a more general statement than PIK Crim. 3d 54.01, PIK Crim. 3d 54.01-A reiterates the direction
in PIK Crim. 3d 54.01 that the State's burden can be met through inferences drawn from a
defendant's actions. What is troubling about the instruction is what it does not state; specifically,
it does not indicate the specific intent that must be established to prove the elements of the
charged crimes or various lesser included offenses. See State v. Bruce, 255 Kan. 388, 394, 874
P.2d 1165 (1994) ("'The distinction between a general intent crime and a crime of specific intent
is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in
question identifies or requires a further particular intent which must accompany the prohibited
acts.'").
Because PIK Crim. 3d 54.01-A blurs general and specific intent, there is a long line of
precedent in which it has been repeatedly held that PIK Crim. 3d 54.01-A should not be used as a
separate instruction in a case where specific intent must be proven. E.g., State v. Yardley, 267
Kan. 37, 42-43, 978 P.2d 886 (1999); State v. Mitchell, 262 Kan. 434, 442-43, 939 P.2d 879
(1997); State v. Isley, 262 Kan. 281, 293, 936 P.2d 275 (1997); State v. Plunkett, 261 Kan. 1024,
1032, 934 P.2d 113 (1997). The same point is emphasized in the Notes on Use for PIK Crim. 3d
54.01-A, which state:

"This instruction [PIK Crim. 3d 54.01-A] is not recommended for general use. The PIK
instruction defining the crime should cover either specific or general criminal intent as an element
of the crime. This instruction should be used only where the crime requires only a general
criminal intent and the state of mind of the defendant is a substantial issue in the case."
(Emphasis added.)
First-degree murder is a specific intent crime, and the instruction should not have been given.
See State v. Trussell, 289 Kan. 499, 503, 213 P.3d 1052 (2009) (State required to prove specific
intent to kill and premeditation to convict of first-degree murder).

Despite this guidance and precedent, Ellmaker requested PIK Crim. 3d 54.01-A. A party
cannot allege error arising from an instruction that the party requested. See K.S.A. 22-3414(3).
It follows that a party who injects error by requesting an erroneous instruction cannot complain
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that a different instruction causes the same error. Here we have a situation where the erroneous,
requested instruction (PIK Crim. 3d 54.01-A) blurs the requirement of specific intent and
potentially confused the jury as to what intent must be established. The complained-of
instruction (PIK Crim. 3d 54.01) is claimed to have done the same thing. Under those
circumstances, Ellmaker cannot complain of the alleged error.

C. Premeditation

In the second prong of this issue, Ellmaker argues Instruction 10 could have led the jury
to believe that only the voluntary act of stabbing had to be thought over beforehand, not the
killing. We disagree because the instructions clearly advised that the intent to kill and
premeditation were separate elements and that the State was required to prove both. To explain,
several instructions need to be considered.

First, Instruction 15 stated the elements of premeditated first-degree murder. This
instruction, which was modeled after PIK Crim. 3d 56.01, stated:

"The defendant is charged in Count I of the Complaint with the crime of murder in the
first degree. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Teri Zenner;
2. That such killing was done with premeditation;
3. That this act occurred on or about the 17th day of August, 2004, in Johnson County,
Kansas."

As previously noted, Ellmaker's counsel conceded element 1―that Ellmaker
intentionally killed Zenner. Element 2 stated the premeditation requirement and clearly required
that the killing be premeditated. Thus, contrary to Ellmaker's argument, the instruction left no
room for the jury to conclude that only the stabbing had to be premeditated.

Another instruction―Instruction 16―provided the jury the definition of "premeditation."
Instruction 16, which was identical to PIK Crim. 3d 56.04, reiterated that the killing had to be
premeditated and stated:
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"'Premeditation' means to have thought the matter over beforehand, in other words, to
have formed the design or intent to kill before the act. Although there is no specific time period
required for premeditation, the concept of premeditation requires more than the instantaneous,
intentional act of taking another's life." (Emphasis added.)

In addition, Instruction 7, which followed PIK Crim. 3d 52.02, clearly informed the jury
of the State's burden to prove every element. Furthermore, Instruction 10 did not alter the other
instructions' guidance on the State's burden of proof. As explained in the PIK committee's Notes
on Use for PIK Crim. 3d 54.01 (on which Instruction 10 is based), the inference of intent
instruction "is a rule of evidence and does not deal with the required element of criminal intent
necessary for conviction in those cases where criminal intent is a necessary element of the
offense"; see also PIK Crim. 3d 54.01-A, Notes on Use (PIK Crim. 3d 54.01-A "must not be
confused with" PIK Crim. 3d 54.01 "which is a rule of evidence and does not purport to charge
the jury to find criminal intent necessary for conviction."); State v. Lassley, 218 Kan. 752, 756,
545 P.2d 379 (1976) (stating that the inference of intent instruction pertains to the presumption
of intent which is merely a rule of evidence). Moreover, the "instruction is designed to make it
crystal clear that the 'presumption' is only a permissive inference, leaving the trier of fact free to
consider or reject it." PIK Crim. 3d 54.01, Comment. In fact, Instruction 10 emphasized: "You
may accept or reject [the inference] in determining whether the State has met its burden to prove
the required criminal intent of the defendant."

Based on this reasoning, this court has consistently approved PIK Crim. 3d 54.01. E.g.,
Martinez, 288 Kan. at 452; State v. Stone, 253 Kan. 105, Syl. ¶ 1, 853 P.2d 662 (1993); State v.
Harkness, 252 Kan. 510, 525-27, 847 P.2d 1191(1993); State v. McDaniel & Owens, 228 Kan.
172, 179-80, 612 P.2d 1231 (1980); State v. Lassley, 218 Kan. 758, 762, 545 P.2d 383 (1976).
Although these cases primarily dealt with an issue of shifting burdens, the decisions also often
contained statements relating to Ellmaker's argument.

For example, in Lassley, the court contrasted presumptions with inferences and explained
that an instruction allowing the jury to infer intent

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"is consistent with the requirement that the prosecution prove the criminal intent. Intent is
difficult, if not impossible, to show by definite and substantive proof. Thus, it is agreed that
criminal intent may be shown by proof of the acts and conduct of the accused, and inferences
reasonably drawn therefrom. We fail to see any conflict with the statutory burden placed on the
state." Lassley, 218 Kan. at 762-63.

Subsequently, in Harkness, this court explained that "'an instruction containing a
permissive inference does not relieve the State of its burden because it still requires the State to
convince the jury that an element, such as intent, should be inferred based on the facts proved.'
[Citation omitted.]" Harkness, 252 Kan. at 526; see Stone, 253 Kan. at 106-08. Most recently,
in a premeditated first-degree murder case, this court rejected the defendant's argument that PIK
Crim. 3d 54.01 "allows the jury to disregard the State's burden of proving intent." Martinez, 288
Kan. at 452.

This repeated rejection of Ellmaker's argument reaffirms the propriety of the instructions
in this case. Considering all the instructions together, we conclude Instruction 10 did not
mislead the jury into believing that the State did not have to prove that Ellmaker premeditated
the killing and could meet its burden by proving that Ellmaker premeditated the stabbing.

II. ALLEN-TYPE INSTRUCTION

Next, Ellmaker challenges the language stating that "[a]nother trial would be a burden on
both sides," found in Instruction 14, an Allen-type instruction, which mirrored PIK Crim. 3d
68.12. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). He
contends on appeal that Instruction 14 impermissibly pressured jurors to reach a unanimous
verdict. In addition, he argues that this language is misleading and inaccurate because another
trial is not a burden to either party. Ellmaker contends, as well, that the disputed language
prejudiced him because it appealed to the jurors' financial interests as taxpayers. We agree and
conclude the district court erred in giving the deadlocked jury instruction. Nevertheless, we also
conclude the district court's decision was not reversible error.

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Ellmaker did not object to the instruction at trial; therefore, as with the previous issue, the
clearly erroneous standard of review applies. The language which Ellmaker argues is clearly
erroneous is emphasized in the following quotation of Instruction 14:

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

The giving of the deadlocked jury instruction before the jury retires for deliberations has
previously been approved, see State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003),
and reaffirmed in State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006). But this court
recently announced in Salts, 288 Kan. 263, Syl. ¶ 2, that it is error to include the last sentence in
the first paragraph of the instruction: "Another trial would be a burden on both sides." There,
for the first time on appeal, Salts challenged the deadlocked jury instruction, arguing the
language was misleading and inaccurate because another trial does not burden either party; it is
the State's obligation and a defendant's right. Salts further argued the language was legally
incorrect because, as noted in a previous jury instruction, the jury should not consider what
happens after trial. Finally, Salts argued the disputed language prejudiced him because it
appealed to the jurors' financial interests as taxpayers.

In holding that the challenged language was misleading and inaccurate, the Salts court
stated:

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"Contrary to this language, a second trial may be burdensome to some but not all on either side of
a criminal case. Moreover, the language is confusing. It sends conflicting signals when read
alongside . . . [an] instruction that tells jurors not to concern themselves with what happens after
they arrive at a verdict.
"We therefore hold that including the language '[a]nother trial would be a burden on both
sides' in PIK Crim. 3d 68.12 is error." Salts, 288 Kan. at 266.

Nevertheless, convinced there was no real possibility of the jury rendering a different
verdict if the error had not occurred, we concluded there was no reversible error, even if the
instruction included an erroneous statement. Salts, 288 Kan. at 267. The deadlocked jury
instruction in Salts, as in the present case, was given before the jury deliberated and was included
with all the other jury instructions.

Similar to Salts, we are firmly convinced that there is no real possibility that the jury
would have rendered different verdicts if the error had not occurred. The evidence against
Ellmaker was substantial. There is no question that he was guilty of serious crimes against both
Zenner and Sue. As to the count of premeditated first-degree murder, the defense conceded the
intent to kill. Further, there was considerable evidence of premeditation, including Ellmaker's
gathering of weapons, his apparent plan to hold Zenner against her will, and his statements that
"I knew she was going to go to the police about me holding her at knife point in my room so I
did it." Then, without knowing Zenner was probably already dead, when she fell to the floor, he
"knew what [he] had to do," meaning he had to get his chainsaw and use it on Zenner. This
process included him going to his bedroom, getting the chainsaw, following the seven steps to
start the chainsaw, and then using it. Regarding the count of aggravated battery, the evidence
was undisputed that Ellmaker stabbed his mother multiple times resulting in injuries that
required medical treatment. In light of this evidence, we do not hesitate in finding that the
district court's giving the Allen-type instruction does not require reversal of either conviction.

III. PROSECUTION AS ADULT WITHOUT JURY DETERMINATION

Next, Ellmaker argues that when the juvenile judge made factual findings supporting its
decision to authorize the prosecution of him as an adult, it increased his potential punishment in
violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
17


As part of its response to these arguments, the State raises the preliminary question of
whether we have jurisdiction to consider this Apprendi issue because Ellmaker consented to the
order authorizing his prosecution as an adult. Appellate courts have unlimited review over
questions involving the existence of jurisdiction. See State v. Fischer, 288 Kan. 470, 472, 203
P.3d 1269 (2009) (stating that constitutional challenges present a question of law subject to
unlimited review); State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007) (stating that
jurisdiction is a question of law subject to unlimited review).

A. Additional Facts

Initially, charges were brought against Ellmaker as a juvenile under the Kansas Juvenile
Justice Code, K.S.A. 38-1601 et seq., alleging he committed two person felony
offenses―premeditated first-degree murder, an off-grid crime, and aggravated battery, a
nondrug severity level 4 crime. See K.S.A. 21-3401(a); K.S.A. 21-3414. Based in part on the
severity of these crimes, the State filed a motion requesting a "waiver to adult status" under
K.S.A. 38-1636 in order to prosecute Ellmaker as an adult under the Kansas Criminal Code,
K.S.A. 21-3101 et seq. At the hearing on the matter, defense counsel stated the following on the
record:

"We have had [Ellmaker] examined by three doctors, actually four [sic]–two Ph.D. psychologists,
and a psychiatrist. They all unanimously concur that he is severely ill, mentally ill, and needs
long-term structured treatment such that jurisdiction of this court would be exceeded by his needs.
"And I have gone over the factors that the court is to consider under K.S.A. 38-1636 with
[Ellmaker] in quite some detail, and he has concluded along with us that at this point in time, he
will stipulate to the waiver and stipulate that the court should waive its original jurisdiction and
that the proceedings continue in the adult court."

Before accepting Ellmaker's stipulation, the judge presiding over the juvenile proceeding,
asked Ellmaker if he had enough time to think about this decision and to discuss it with defense
counsel. Ellmaker said, "Yes, I have." Ellmaker indicated that he was taking prescribed
medications, but they did not interfere with his ability to think clearly at the hearing. Ellmaker
denied having been threatened to make the stipulation or having been given any promises. When
18

the judge asked Ellmaker if it was his desire to "waive your right to a hearing and be prosecuted
as an adult," he answered in the affirmative. The judge also considered the eight factors in
K.S.A. 38-1636(e) that a court must consider in determining whether prosecution as an adult
should be authorized―i.e., seriousness of the offense; whether the offense was committed in an
aggressive, violent, premeditated, or willful manner; whether the offense was against a person or
property; the number of alleged offenses unadjudicated and pending; the juvenile's previous
history; the sophistication or maturity of the juvenile; the availability of facilities or programs
likely to provide rehabilitation; and whether the interests of the juvenile or community would be
better served by adult prosecution or extended juvenile jurisdiction.

B. Jurisdiction

"It is well established that appellate jurisdiction is defined by statute; the right to appeal is
neither a vested nor constitutional right. . . . [A]ppellate courts do not have discretionary power
to entertain appeals from all district court orders. [Citations omitted.]" Williams v. Lawton, 288
Kan. 768, 778, 207 P.3d 1027 (2009). Applying this rule in this case, the State argues that the
relevant statutes do not grant appellate jurisdiction over a decision to certify a juvenile as an
adult if the juvenile consents to adult jurisdiction. To support the argument, the State relies on
K.S.A. 38-1681(a)(1) (repealed effective January 1, 2007; L. 2006, ch. 169, sec. 140), which was
applicable at the time of the hearing in this case and stated in part: "Unless the respondent
[juvenile offender] has consented to the order, an appeal may be taken by a respondent from an
order authorizing prosecution as an adult." See K.S.A. 2008 Supp. 38-2380(a)(1) (current
version containing nearly identical language); K.S.A. 22-3208(4) (stating that "consent to trial
upon a complaint . . . shall constitute a waiver of defenses and objections based upon the
institution of the prosecution").

A similar argument was considered in State v. Smith, 268 Kan. 222, 993 P.2d 1213
(1999). In Smith, one of the defendants, a juvenile, had requested to be tried as an adult, but he
argued on appeal that the court improperly waived jurisdiction by failing to consider the statutory
factors enumerated in K.S.A. 38-1636(e). In response, the State argued that the juvenile judge's
order authorizing prosecution as an adult was not appealable because the juvenile defendant had
19

consented to the order. Under the facts of that case, this court disagreed because the statute
provides that "the judge, in making the decision to waive jurisdiction, must take into account the
juvenile's stipulation and evidence concerning the eight factors in K.S.A. 38-1636(e)." Smith,
268 Kan. at 246. The judge in the Smith case had failed to consider the eight factors.

Regarding the right to appeal, the Smith court stated: "While K.S.A. 38-1681 precludes
an appeal of an order waiving juvenile status when the respondent [juvenile] has consented to the
waiver, it does not preclude an appeal if the judge failed to follow the statutory requirements for
the waiver." (Emphasis added.) Smith, 268 Kan. at 244; cf. In re S.M.D., 26 Kan. App. 2d 165,
169-70, 980 P.2d 1028, rev. denied 267 Kan. 889 (1999) (determining that K.S.A. 38-1636 does
not require courts to consider statutory factors when a respondent stipulates that he or she cannot
rebut the statutory presumption).

In this case, Ellmaker clearly consented to the order by conceding on the record that he
needs longer supervision than he could receive in the juvenile justice system, a concession which
was a stipulation to the State's evidence. But, unlike the situation in Smith, Ellmaker does not
argue that the juvenile judge failed to consider the eight factors found in K.S.A. 38-1636(e).
Moreover, the record shows that the judge did consider those factors in ordering Ellmaker's adult
certification. Hence, under the reasoning in Smith, Ellmaker was properly certified for
prosecution as an adult and we do not have jurisdiction to consider Ellmaker's argument.
Furthermore, the allegation of an Apprendi-like error does not require a different result. See
United States v. Booker, 543 U.S. 220, 244, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005)
(recognizing exception to Apprendi rule when defendant admits a fact or pleads guilty to an
indictment that states the fact).

IV. K.S.A. 38-1636(C)(2)

Nevertheless, in a related argument, Ellmaker contends that the juvenile judge's failure to
comply with another subsection of the same statute―the notification requirements of K.S.A. 38-
1636(c)(2) (repealed and Revised Kansas Juvenile Justice Code enacted effective January 1,
2007; L. 2006, ch. 169, secs. 1, 47, and 140; see K.S.A. 2008 Supp. 38-2347[c][2])―mandates
20

that we vacate his sentences and remand his case for a resentencing under the Juvenile Justice
Code. This brings into question whether the failure to advise Ellmaker of each of the rights
enumerated in K.S.A. 38-1636(c)(2) creates a situation similar to that in Smith, 268 Kan. at 244-
46, such that an appeal may be taken despite the juvenile's waiver at the hearing.

The requirements of subsection (c)(2) of K.S.A. 38-1636 are quite different from
subsection (e), the provision at issue in Smith. K.S.A. 38-1636 (c)(2) requires the judge to
inform the juvenile of the following six items at the hearing on a motion to authorize adult
prosecution:

"(A) The nature of the charges in the complaint;
"(B) the right of the respondent [juvenile] to be presumed innocent of each charge;
"(C) the right to trial without unnecessary delay and to confront and cross-examine
witnesses appearing in support of the allegations of the complaint;
"(D) the right to subpoena witnesses;
"(E) the right of the respondent [juvenile] to testify or to decline to testify; and
"(F) the sentencing alternatives the court may select as the result of the juvenile being
prosecuted under an extended jurisdiction juvenile prosecution."

The record reflects that the judge advised Ellmaker of some of these factors but did not
explain the potential penalties if Ellmaker's offenses were treated as juvenile offenses.

This failure is different from the defect in Smith. A reading of the rights listed in K.S.A.
38-1636(c)(2) does not impact the judge's decision to certify the juvenile as an adult. In Smith, it
was emphasized that a judge must consider the subsection (e) factors and make the required
findings regardless of the juvenile's stipulation because the juvenile is not stipulating to adult
jurisdiction but is stipulating "to allegations made against him in a motion to waive juvenile
jurisdiction." Smith, 268 Kan. at 246. The distinction derives from the rule that subject matter
jurisdiction cannot be conferred by waiver, estoppel, or consent. See State v. Randolph, 19 Kan.
App. 2d 730, 737-39, 876 P.2d 177, rev. denied 255 Kan. 1006 (1994) (citing State v. Mayfield,
241 Kan. 555, 558, 561, 738 P.2d 861 [1987]). Consequently, a juvenile does not consent to
jurisdiction in a literal sense. Rather, the stipulation merely means there will be no evidence
21

presented to rebut the presumption created by K.S.A. 38-1636(a)(2) or that there is a stipulation
to the evidence the State proffers. See State v. Luna, 271 Kan. 573, Syl. ¶ 1, 24 P.3d 125 (2001)
("A juvenile may stipulate to the State's allegations in a motion to certify the juvenile for
prosecution as an adult, and, provided the allegations and/or the factual basis reviewed at the
motion hearing constitute a 'rough approximation' of the eight mandatory considerations listed in
K.S.A. 38-1636[e], the certification will not be overturned on appeal."). Such a stipulation is not
impacted by the factors listed in K.S.A. 38-1636(c)(2).

The judge presiding over the juvenile proceeding in this case recognized the distinction,
as reflected in the findings recorded in the journal entry which state that Ellmaker stipulated "to
the motion and the evidence proffered" by the State. Further, the judge found Ellmaker's "need
for extended structure and treatment" meant that "he cannot be adequately treated within the
limitations of the juvenile code." This finding reflected the substance of Ellmaker's stipulation.
Nevertheless, the judge made findings regarding other factors, citing the gravity and seriousness
of the offenses and Ellmaker's age. Only then did the judge conclude "there is sufficient
evidence to order [Ellmaker] to be prosecuted as an adult."

Hence, this case is distinguishable from Smith and is more like the situation in State v.
Williams, 277 Kan. 338, 85 P.3d 697 (2004), which addresses the merits of Ellmaker's argument
and, in doing so, indirectly discusses whether this court has jurisdiction to consider those
arguments. In Williams, the defendant argued that the juvenile judge's failure to inform him of
the items listed in K.S.A. 38-1636(c)(2) deprived the criminal court of jurisdiction to try him as
an adult. Rejecting the defendant's argument, this court stated:

"Although the statute provides that the court shall inform the respondent [juvenile] of the items
listed in subsection (c)(2), if the respondent is not present for the hearing, as permitted by
subsection (d), the court cannot inform the respondent at the hearing of the items listed in
subsection(c)(2). Hence, contrary to the defendant's contention, the fact the court did not inform
the respondent of the items in subsection(c)(2) could not logically be a basis for depriving the
district court of jurisdiction in the criminal prosecution." Williams, 277 Kan. at 347.

22

Explaining that there is no logical basis for depriving the criminal court of jurisdiction
when the juvenile judge fails to advise the juvenile defendant of the items under K.S.A. 38-
1636(c)(2), the Williams court further stated:

"[T]here is no statutory or case law basis for divesting the district court of jurisdiction if defendant
was not advised of the items specified in K.S.A. 38-1636(c)(2). Moreover, because [juvenile]
respondents need not be present for a 38-1636 hearing, there is no logical basis for divesting the
district court of jurisdiction if defendant was not advised at the hearing of the subsection(c)(2)
items. Some sanction may be appropriate, but it would not include divestiture of district court
jurisdiction." (Emphasis added.) Williams, 277 Kan. at 348.

See State v. Muhammad, 237 Kan. 850, 856, 703 P.2d 835 (1985) (essentials of due process were
met even though the juvenile's failure to appear at K.S.A. 38-1636 hearing was involuntary).
This court affirmed Williams' convictions and sentences. See Williams, 277 Kan. at 348-51, 358.

For the same reasons, where there is no evidence presented but rather a stipulation to the
evidence that formed the basis for the juvenile judge's findings regarding the K.S.A. 38-1636(e)
factors, there is no basis to apply the Smith rule. Rather, under K.S.A. 38-1681, if a juvenile
consents to the order authorizing prosecution as an adult, an appellate court does not have
jurisdiction to consider the issues related to the waiver proceeding or to the judicial
determination to waive juvenile jurisdiction even if a district judge fails to inform a juvenile of
the items listed in K.S.A. 38-1636(c)(2). Therefore, Ellmaker was properly certified for and
prosecuted as an adult, and we affirm his convictions.

V. AGGRAVATING FACTORS SUPPORTING HARD 50 SENTENCE

Next, Ellmaker complains for the first time on appeal that his due process rights were
violated because, when imposing the hard 50 life sentence, the district court relied on
aggravating factors that were not charged in the criminal complaint. The complaint alleged
premeditated first-degree murder, an off-grid offense. Nevertheless, Ellmaker contends that
because the aggravating factors were not included in the complaint, he was denied notice of the
"specific crime subcategory in the crime seriousness scale" under K.S.A. 22-3201(c). At oral
23

argument, Ellmaker emphasized he is not making a constitutional due process argument but
relies on a statutory right to notice arising from K.S.A. 22-3201(c).

A. Jurisdiction

Again, the State challenges whether this issue can be raised for the first time on appeal,
citing to the general rule that issues not raised before the district court may not be raised on
appeal. See State v. Valladarez, 288 Kan. 671, 675, 206 P.3d 879 (2009). Ellmaker asserts that
this issue satisfies two of the exceptions to the general rule—(1) the issue involves a question of
law based on admitted facts and is determinative of the case and (2) consideration of the issue is
necessary to serve the ends of justice or to prevent a denial of due process rights. See State v.
Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). Generally, matters of statutory interpretation
are questions of law. See State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008).
Further, the issue is determinative of Ellmaker's hard 50 life sentence. Consequently, we
determine the first exception is satisfied and the issue may be raised for the first time on appeal.

B. Standard of Review

Resolution of the issue depends on our interpretation of K.S.A. 22-3201. Our rules of
statutory interpretation are well known. As we recently stated:

"When a court is called upon to interpret a statute, the intent of the legislature governs if that intent
can be ascertained. The legislature is presumed to have expressed its intent through the language
it enacted. [Citation omitted.] For this reason, when the language of a statute is plain and
unambiguous, courts need not resort to statutory construction. [Citation omitted.] If a statute is
subject to more than one interpretation, however, a court attempting to discern legislative intent
may employ rules of statutory construction and look to the historical background of the enactment,
the circumstances attending its passage, the purposes to be accomplished, and the effects the
statute may have under the various constructions suggested. [Citations omitted.]" State v.
Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009).





24

C. Analysis

K.S.A. 22-3201(c) requires that a complaint, information, or indictment "allege facts
sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale."
Ellmaker contends the complaint in this case failed to meet this requirement because it did not
allege the aggravating facts that were used as a basis to impose his hard 50 life sentence.
Ellmaker argues that because aggravating facts caused the parole eligibility on his life sentence
to increase from 25 years to 50 years, this constituted an increase on the "crime seriousness
scale" which should have been included in the criminal complaint.

In response, the State argues that the language in K.S.A. 22-3201(c) was intended to
apply to crimes characterized by varying severity levels―such as aggravated battery, which can
be a severity level 4, 5, 7, or 8 person felony―depending on the manner in which the crime was
committed. See K.S.A. 21-3414(b). Likewise, depending on the facts, theft can be a severity
level 5, 7, or 9 nonperson felony or a class A nonperson misdemeanor under K.S.A. 21-3701(b);
see also, e.g., K.S.A. 21-3413(b) (classifying battery against a law enforcement officer as a class
A misdemeanor, severity level 5 person felony, or severity level 7 person felony). This type of
categorization is not applicable to premeditated first-degree murder, an off-grid person felony,
for which a sentence of life imprisonment is imposed.

The State's arguments are valid. Our review of the Kansas statutes reveals that K.S.A.
22-3201(c) is the only statute using the term "crime seriousness scale." The term has not been
defined by the legislature or an appellate court. Nevertheless, in several cases, without
discussion of the term's meaning, this court has treated the phrase as the equivalent of a crime
severity level. For example, in State v. Masterson, 261 Kan. 158, 164, 929 P.2d 127 (1996),
after quoting the statute, this court stated: "Masterson should have the right to know before trial
the severity level of the crime being charged." (Emphasis added.) Similarly, in State v. Moody,
282 Kan. 181, 197, 144 P.3d 612 (2006), the court applied K.S.A. 22-3201(c) and concluded that
a "defendant is entitled under due process to notice in the information or complaint of the
severity level of the . . . offense being charged." (Emphasis added.) These cases support the
State's position.
25

Further, this court has held that imposition of a hard 50 sentence of life imprisonment
without parole for 50 years, based on a fact not found by the district court as factfinder in a
bench trial or by a jury in a jury trial, does not increase a defendant's maximum sentence of
imprisonment for life, because the hard 50 life sentence only impacts the lower end of the
sentence; thus, there is no violation of the defendant's due process rights or right to trial by jury.
State v. Boldridge, 274 Kan. 795, Syl. ¶ 11, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003);
see State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932
(2001). In other words, the hard 50 sentencing procedure is not the equivalent of exposing a
defendant to an increased maximum penalty. State v. Warledo, 286 Kan. 927, 955, 190 P.3d 937
(2008) (stating hard 50 life sentencing scheme "does not expose a defendant to a higher
maximum sentence than provided by statute"); see State v. Hurt, 278 Kan. 676, 688, 101 P.3d
1249 (2004). Simply put, the crime severity―i.e., the crime seriousness scale―does not
increase.

Consequently, we conclude the requirement in K.S.A. 22-3201(c) that a complaint,
information, or indictment allege facts sufficient to constitute a crime or specific crime
subcategory in the crime seriousness scale (the crime severity) does not require the State to
allege the aggravating factors that are used as a basis to impose a hard 50 life sentence under
K.S.A. 21-4635.

VI. CONSTITUTIONALITY OF HARD 50 SENTENCING SCHEME

Next, in a related argument, Ellmaker contends for the first time on appeal that because a
jury does not determine the facts that increase the penalty beyond a reasonable doubt, Kansas'
hard 50 sentencing scheme under K.S.A. 21-4635 is unconstitutional under Ring v. Arizona, 536
U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2005); Apprendi v. New Jersey, 530 U.S. 466, 147
L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d
311, 119 S. Ct. 1215 (1999).

This court has previously rejected the same challenge in numerous cases. See, e.g., State
v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); State v. Conley, 287 Kan. 696, 700-01, 197
26

P.3d 837 (2008); Warledo, 286 Kan. at 954; State v. Reid, 286 Kan. 494, Syl. ¶ 23, 186 P.3d 713
(2008); Williams, 277 Kan. at 357. Ellmaker fails to present any grounds for reconsidering our
prior holdings. His argument fails, and we affirm Ellmaker's hard 50 life sentence.

VII. CUMULATIVE ERROR

Finally, Ellmaker argues that cumulative error requires reversal of his convictions and
remand for a new criminal trial or juvenile adjudication. He contends that even if the errors
alleged on appeal do not individually require this court to reverse his convictions, the cumulative
impact of the alleged errors denied him a fair trial.

This court has applied the following test to a claim of cumulative trial errors:

"'Cumulative trial errors, when considered collectively, may be so great as to require reversal of
the defendant's conviction. The test is whether the totality of circumstances substantially
prejudiced the defendant and denied [the defendant] a fair trial. No prejudicial error may be found
upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.'
[Citations omitted.]" State v. Brown, 285 Kan. 261, 305-06, 173 P.3d 612 (2007).

The district court's decision to give a deadlocked jury instruction is the only trial error,
albeit not reversible error, we have found. "[T]he presence of one trial error is insufficient to
accumulate." State v. Houston, 289 Kan. 252, Syl. ¶ 14, 213 P.3d 728 (2009). Because multiple
errors have not been found, the cumulative error doctrine is not applicable.

Affirmed.