State v. Hargrove

1

No. 105,415

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SEAN ARNELL HARGROVE,
Appellant.


SYLLABUS BY THE COURT

1.
The omission of an element of a charged offense from an instruction compromises
the defendant's right to trial by jury protected in the Sixth Amendment to the United
States Constitution and § 10 of the Kansas Constitution Bill of Rights. The omission may
be treated as harmless when the element is uncontested and supported by overwhelming
evidence.

2.
A party may not invite or prompt error in a case and then complain of that error as
a ground for reversing an adverse judgment. The invited error rule effectively binds trial
counsel to strategic decisions inducing judicial rulings with the purpose of obtaining
favorable judgments for their clients. The rule also defeats a disreputable strategy aimed
at requesting that a judge act in a particular way to salt the record with error as an end in
itself, thereby providing potential grounds for reversal of an adverse judgment.

3.
Persons may relinquish their constitutional rights if they do so knowingly and
voluntarily.

2

4.
Criminal defendants are generally bound by the actions of their lawyers, save for
decisions on whether to go to trial, to testify, or to appeal. Selection and phrasing of
proposed jury instructions come within those decisions entrusted to lawyers exercising
their professional judgment.

5.
A trial judge is not bound to give either side's suggested instructions and has an
independent duty to fashion a set of instructions that correctly informs the jurors of the
relevant law.

6.
If the lawyer representing a criminal defendant makes a calculated decision to
sacrifice certain constitutionally protected interests of his or her client for tactical
advantage in attaining an acquittal and in doing so induces the district court to act or rule
in particular ways, then those actions or rulings generally cannot be asserted as points of
error on direct appeal of a conviction. To hold otherwise would invite game-playing and
manipulation incompatible with a fair adjudicatory process.

7.
Even if the invited error rule might be appropriately applied to common trial
decisions that unintentionally compromise a given defendant's constitutional rights, it
ought to be relaxed for those deficiencies in jury instructions. Absent tactical intent on
counsel's part, the shared responsibility for preparing final jury instructions weighs
against rigid application of invited error to deflect a constitutional challenge.

8.
Under the facts of this case, the court declines to review the omission of contested
elements of the charged offense from the jury instructions because the record fails to
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show whether the omission resulted from a tactical decision or from inadvertence. But the
issue may be raised and, if necessary, a record developed on habeas corpus review.

9.
In reviewing a sufficiency challenge in a criminal case, an appellate court
construes the evidence in a light most favorable to the party prevailing below and in
support of the jury's verdict. The court will neither reweigh the evidence generally nor
make credibility determinations specifically. The issue for review is simply whether
rational jurors could have found the defendant guilty beyond a reasonable doubt.
Circumstantial evidence alone may yield a conviction if each element of the offense can
be supported.

10.
A not guilty verdict on one charge typically creates no legal or practical bar to an
appellate court considering the evidence supporting that charge to the extent it also
supports another charge of which the defendant has been convicted.

11.
Jurors in a criminal case must be convinced the evidence collectively establishes
beyond a reasonable doubt the elements the State is required to prove for the charged
offense. Particular evidence might be afforded considerable credit in satisfying that
standard, while other evidence could be viewed as less reliable but still indicative of guilt,
and some could be rejected outright as unworthy of belief.

12.
Under the facts of this case, there was sufficient evidence to support the jury's
verdict that the defendant committed an overt act toward the commission of an attempted
aggravated burglary and that the defendant had the intent to commit a theft upon entering
the premises.

4

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS; judge. Opinion filed February 1,
2013. Affirmed.

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

Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., ATCHESON and BRUNS, JJ.

ATCHESON, J.: This case presents a confounding question on the scope of the
invited error doctrine: Should the doctrine extinguish a criminal defendant's appeal of a
conviction when that challenge rests on a constitutional defect arising from actions the
defendant's lawyer asked the district court to take? In this case, the lawyer for Defendant
Sean Arnell Hargrove requested and the Johnson County District Court gave a jury
instruction that omitted substantive and contested elements of the charged offense—an
error compromising the constitutional right to trial by jury. On balance, policy
considerations and the weight of authority favor applying invited error to bar Hargrove's
point in this direct appeal because the record fails to establish whether the request was
tactical or inadvertent. We come to that conclusion with the understanding that Hargrove
ought to be able to secure judicial review of the lawyer's actions in a motion for habeas
corpus relief.

On appeal, Hargrove also contends the State failed to present sufficient evidence
to support his conviction for attempted aggravated burglary. The record evidence, though
something less than overwhelming, furnishes a legally adequate basis for the verdict. We,
therefore, affirm Hargrove's conviction.


5

FACTS AND PROCEDURAL HISTORY

After a late morning workout on April 26, 2010, John Geither was showering at
his home on a relatively secluded residential street in Shawnee when the doorbell rang
about 10 times. Geither toweled off, set the home's alarm system, and looked out an
upstairs front window. He saw a stranger walking away from the front door toward a car
parked on the street. The stranger turned out to be Hargrove. Geither assumed the
individual was leaving, so he finished getting ready for his day.

Almost immediately, Geither heard the doorbell ring again and the front door
handle turn. He called 911 to report a possible break-in. While Geither was on the phone
with the 911 dispatcher, he heard pounding or thumping sounds at the side of the house
near the telephone and security alarm box. Geither remained on the line with the
dispatcher.

Shawnee Police Sergeant Ben Mendoza arrived about 8 minutes after Geither
placed the call. Officer Thomas Rhomberg got there at almost the same time. Mendoza
saw Hargrove getting into a sedan, so he pulled up and activated the emergency lights on
his patrol car. Rhomberg then positioned his patrol car to block Hargrove's vehicle. After
doing so, Rhomberg spoke with Hargrove. Hargrove said he did not know who lived in
the house but had stopped to ask for directions. Rhomberg looked in the sedan and saw a
pair of white cotton gloves and a Phillip's-head screwdriver. At some point, the officers
formally arrested Hargrove, although the trial transcript is less than clear as to when.

Rhomberg walked around Geither's house and saw the telephone box had been
pulled away from the outside wall, the mounting brackets broken, and several wires
jerked loose. He also noticed a partial shoeprint in the dirt beneath the telephone box. The
shoeprint was preserved and later compared to Hargrove's footwear. At trial, a forensic
examiner from the Kansas Bureau of Investigation testified the shoeprint was consistent
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with Hargrove's boots in terms of size and general characteristics. But the examiner told
the jury the print lacked sufficient detail to conclude it matched Hargrove's boots.

Rhomberg also saw pry marks on a sliding glass door at the rear of Geither's
house. He then unsuccessfully looked for a tool that could have been used to make the
marks. At trial, a detective testified that the screwdriver found in Hargrove's car was
inconsistent with the pry marks and was not used to jimmy the door.

Geither testified that neither the telephone box nor the back door had any damage
the day before he saw Hargrove and called the police.

A Shawnee detective interviewed Hargrove at the police station. Hargrove told the
detective he lived in Kansas City, Missouri, and had a job interview at a warehouse there.
But he could not remember the name of the company. Hargrove explained that he drove
to the Kansas side for another job interview, although he could not remember the name of
that company either. The trial evidence showed that the corporate offices of Deffenbaugh
Disposal Services, a business that has a large unskilled workforce, is in the general
vicinity of Geither's home. Hargrove repeated that he had become lost in the residential
area and went to Geither's house to get directions. In response to the detective's questions,
Hargrove acknowledged he saw nothing indicating anyone might be in Geither's house,
such as a car in the driveway. He also agreed he had not gone to the neighboring house in
search of directions after getting no response at Geither's home. Hargrove explained to
the detective that he had decided he could find his way out of the residential area.
Hargrove told the detective he had stopped for about 3 minutes and did not go to the side
or back of Geither's house.

The State charged Hargrove with one count of attempted aggravated burglary, in
violation of K.S.A. 31-3301 and K.S.A. 21-3716, and misdemeanor criminal damage to
property, in violation of K.S.A. 21-3720. At trial, the prosecutor presented Hargrove's
statements to the detective as part of the State's case. Mendoza and Rhomberg recounted
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the circumstances of their encounter with Hargrove. Both testified that Hargrove did not
ask them for directions when they first approached him. Hargrove chose not to testify and
presented no evidence.

The district court gave the following instruction to the jury as setting forth the
elements of attempted aggravated burglary:

"JURY INSTRUCTION NO. 10
"The defendant is charged in count I with the crime of an attempt to commit
aggravated burglary. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant performed an overt act toward the commission of the crime
of aggravated burglary;
2. That the defendant did so with the intent to commit the crime of aggravated
burglary;
3. That the defendant failed to complete commission of the crime of aggravated
burglary; and
4. That this act occurred on or about the 26th day of April, 2010, in Johnson
County, Kansas.
"An overt act necessarily must extend beyond mere preparations made by the
accused and must sufficiently approach consummation of the offense to stand either as
the first or subsequent step in a direct movement toward the completed offense. Mere
preparation is insufficient to constitute an overt act.
"The elements of the completed crime of aggravated burglary are as follows:
1. That the defendant knowingly entered or remained in a residence;
2. That the defendant did so without authority;
3. That the defendant did so with the intent to commit a theft;
4. That at the time there was a human being in the residence; and
5. That this act occurred on or about the 26th day of April, 2010, in Johnson
County, Kansas."

The State requested an instruction that substantively matched the one the district
court used. So did Hargrove. The instruction Hargrove requested had slightly different
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introductory wording, but the operative legal language was identical. The proposed
instructions and the instruction given the jury omitted the elements of theft.

The jury convicted Hargrove of attempted aggravated burglary and acquitted him
of criminal damage to property. Based on his extensive criminal history, Hargrove faced
presumptive imprisonment. The district court imposed an aggravated guidelines sentence
of 31 months in prison on Hargrove. Hargrove has timely appealed on grounds that the
jury instruction on attempted aggravated burglary omitted essential elements of the
offense, thereby depriving him of a fair trial, and that the evidence failed to support the
jury's verdict of guilty on that charge.

INVITED ERROR SUPPLANTS CONSTITUTIONAL DEFECT IN JURY INSTRUCTION

For his first issue on appeal, Hargrove submits the jury instruction on attempted
aggravated burglary omitted contested elements of the offense, creating a constitutional
error infecting his right to jury trial. He correctly assesses the problem with the
instruction—the elements of theft are missing. But Hargrove, through his counsel, invited
the error because he requested the deficient instruction. The procedural posture of this
case creates a tension between remedying a trial mistake eroding a criminal defendant's
fundamental rights and enforcing the invited error doctrine preventing a party from
crying foul based on his or her deliberate manipulation of that trial process. We have
found no controlling authority from either the United States Supreme Court or the Kansas
Supreme Court directly addressing and resolving the tension. There may not be a single
rule suited to the task. We do not endeavor to fashion one applicable to every situation.
Rather, we draw from the available precedent and reach a conclusion tailored to the
factual circumstances of this case.

In managing that task, we first look at the nature of the instructional flaw and how
it ordinarily would be evaluated in the absence of invited error. We then consider the
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scope and purpose of the invited error doctrine. Those efforts follow settled paths in the
law. Given the gravity of the insult to Hargrove's constitutional rights, the task of
reconciling them does not.

The reconciliation we reach in this direct appeal properly elevates the invitation of
the error to preeminence notwithstanding the undeniable significance of the right
compromised through the error. To do otherwise here would permit Hargrove to attack
his conviction based on a mistake of the district court that his lawyer plainly helped
induce, perhaps with a deliberate tactical purpose. The record on appeal sheds no light on
why Hargrove's lawyer asked for a truncated instruction leaving out elements of
attempted aggravated burglary. If the decision were one of colorable trial strategy, then
Hargrove should be denied relief. Parties ought not be permitted to speculate on strategic
decisions that compromise their rights in hopes of attaining victory from a jury and then
seek vindication on appeal based on those decisions after they have failed to yield the
desired success.

1. The Nature of the Instructional Error

In this case, the district court should have included the elements of theft in the
instruction outlining what the State had to prove to convict Hargrove of attempted
aggravated burglary. That's because burglary and aggravated burglary require the
perpetrator enter the premises, in this case a house, with the intent to commit certain
specified crimes inside. See K.S.A. 21-3715; K.S.A. 21-3716. Here, the State alleged
Hargrove harbored the intent to steal property from the house, so the elements instruction
refers to theft. But the instruction then omits the particular elements of theft, leaving the
jury without any legal measuring stick for determining that aspect of the attempted
aggravated burglary charge. The omission is error. See State v. Rush, 255 Kan. 672, Syl.
¶ 5, 877 P.2d 386 (1994); State v. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992). In both
Rush and Linn, the Kansas Supreme Court held a burglary instruction to be erroneous
where it failed to include for the jury's consideration the elements of the offense the
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defendant intended to commit upon entering the premises. The Kansas Supreme Court
recently reaffirmed that principle in a prosecution for a different felony, holding: "When
a statute makes the commission of a crime or the intent to commit a crime an element of
another crime, the jury instructions must set out the statutory elements of the underlying
offense." State v. Richardson, 290 Kan. 176, 182-83, 224 P.3d 553 (2010) (citing Rush,
255 Kan. at 679; Linn, 251 Kan. at 801-02). The pattern jury instructions for burglary,
PIK Crim. 3d 59.17, and aggravated burglary, PIK Crim. 3d 59.18, indicate the elements
of the intended offense must be included. See PIK Crim. 4th 58.120; PIK Crim. 4th
58.130. The rule would be no different for an attempt, and neither side suggests
otherwise.

The omission of an element of a charged offense from an instruction compromises
the defendant's right to trial by jury protected in the Sixth Amendment to the United
States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Neder v.
United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); Linn, 251 Kan.
at 802. It, therefore, erodes a fundamental right. The failure to instruct a jury on an
element of a criminal offense may amount to harmless error in some limited
circumstances. The United States Supreme Court determined the omission could be
treated that way if the element were "uncontested and supported by overwhelming
evidence." Neder, 527 U.S. at 17. The Kansas Supreme Court adopted that standard in
Richardson, 290 Kan. at 182-83.

The test for harmlessness is twofold. Not only must the evidence bearing on the
omitted element approach the irrefutable, a defendant effectively has to concede that
component of the charged crime. Such a concession might be inferred from the absence
of contrary evidence or explanation developed in challenging the government's case or
offered as part of the defense case. The standard is particularly rigorous. A lesser measure
would permit a court to impermissibly supplant the jury's fact-finding duty in a criminal
case by substituting its assessment of the evidence on a contested issue. That would be
akin to, though less destructive than, directing a verdict for the government in a criminal
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case—a clear Sixth Amendment violation. See Neder, 527 U.S. at 31-33 (Scalia, J.,
concurring in part and dissenting in part); Sullivan v. Louisiana, 508 U.S. 275, 277, 113
S. Ct. 2078, 124 L. Ed. 2d 182 (1993); Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101,
92 L. Ed. 2d 460 (1986).

In this case, we are not prepared to say the omission of all the elements of theft
from the attempted aggravated burglary instruction could be dismissed as harmless. First,
of course, Hargrove contested the notion that he intended to steal from Geither's home.
The statements he made to the law enforcement officers about wanting directions put his
intent in play. We are, likewise, unwilling to say the evidence was overwhelming,
although, as we explain later, it was sufficient to support the conviction, a far less
demanding standard.

Hargrove, then, has demonstrated a degradation of his right to jury trial that cannot
be set aside as harmless. But the determination of prejudicial error does not end the
matter because Hargrove, through his counsel, bore substantial responsibility for the
defective jury instruction.

2. The Invited Error Doctrine/Rule

In broad terms, a party may not invite or prompt error in a case and then complain
of that error as a ground for reversing an adverse judgment. State v. Divine, 291 Kan.
738, 742, 246 P.3d 692 (2011). The long-standing rule reflects the common-sense notion
that parties cannot complain to an appellate court about their own conduct at trial—or
that of their lawyers—or about rulings they have asked (or invited) a judge to make. If
parties get what they ask for from district court judges, appellate courts will not reverse
judgments against them even though they may think better of their requests on appeal.
The invited error rule applies in civil and criminal cases. See State v. Angelo, 287 Kan.
262, 279-80, 197 P.3d 337 (2008) (criminal); Butler County R.W.D. No. 8 v. Yates, 275
Kan. 291, 296, 64 P.3d 357 (2003) (civil). The Kansas Supreme Court described the
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doctrine in State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982), this way: "Where
a party procures a court to proceed in a particular way and invites a particular ruling, he is
precluded from assailing such proceeding and ruling on appellate review."

Invited error crops up occasionally with jury instructions. Parties request legally
infelicitous instructions that district courts then give, and when the cases turn out badly,
they complain on appeal about the instructional error. See State v. Bailey, 292 Kan. 449,
459, 255 P.3d 19 (2011); State v. Schreiner, 46 Kan. App. 2d 778, 788-89, 264 P.3d 1033
(2011), petition for rev. filed December 5, 2011; State v. McCoy, 34 Kan. App. 2d 185,
189-90, 116 P.3d 48 (citing cases), rev. denied 280 Kan. 988 (2005). In Bailey, 292 Kan.
at 459, the court recently reiterated the doctrine specifically regarding jury instructions:
"When defendant's requested instruction is given to the jury, the defendant cannot
complain the requested instruction was error on appeal."

The invited error rule effectively binds trial counsel to strategic decisions inducing
judicial rulings with the purpose of obtaining favorable judgments for their clients—not
guilty verdicts or, in some cases, convictions on lesser charges for criminal defendants.
See, e.g., Angelo, 287 Kan. at 279-80. The rule also defeats a disreputable strategy aimed
at requesting that a judge act in a particular way to salt the record with error as an end in
itself, thereby providing potential grounds for reversal of an adverse judgment. See
Schreiner, 46 Kan. App. 2d at 791.

The Kansas Supreme Court has held that invited error will vitiate a criminal
defendant's statutory right to receive jury instructions on lesser included offenses as
provided in K.S.A. 22-3414(3). See, e.g., Angelo, 287 Kan. at 279-80. In that case,
Angelo specifically asked that the district court instruct only on first-degree murder,
although the evidence would have supported lesser included offenses; he intended to
force on the jurors an all-or-nothing determination to convict or acquit. Defense counsel
candidly divulged the reason at the instruction conference. The district court obliged
Angelo. The jury did not. On appeal, Angelo argued that the lack of lesser included
13

offense instructions violated K.S.A. 22-3414 and required the conviction be reversed.
The Kansas Supreme Court turned away the argument because Angelo had invited the
error. 287 Kan. at 279-80. Similarly, this court has held that a criminal defendant could
not complain on appeal that his or her right to a unanimous verdict—also a statutory
right—had been compromised because of a jury instruction he or she requested and the
trial judge gave. See Schreiner, 46 Kan. App. 2d at 788-89.

Here, however, Hargrove asserts an error of constitutional dimension and, thus, of
greater magnitude than the loss of a statutory right. The Schreiner decision acknowledged
that difference and declined to consider how the invited error doctrine might be applied to
an asserted constitutional violation. 46 Kan. App. 2d at 791. This case presents the
question, and the time has come to provide an answer.

3. Inviting Constitutional Error in Jury Instructions: A Study in Conflict

Multiple considerations bear on how best to reconcile the invited error rule and the
degradation of a criminal defendant's constitutional rights, especially when they arise
from a defective jury instruction. Before turning to that assessment, we offer some
accepted principles, common observations, and a survey of persuasive authority.

A. General Principles

Persons may relinquish their constitutional rights if they do so knowingly and
voluntarily. Criminal defendants are no exception. Maryland v. Shatzer, 559 U.S. 98,
___, 130 S. Ct. 1213, 1219, 175 L. Ed. 2d 1045 (2010) (self-incrimination); New York v.
Hill, 528 U.S. 110, 114-15, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000) (acknowledging
criminal defendant may waive even fundamental rights); Faretta v. California, 422 U.S.
806, 807, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (right to counsel). For example, an
individual, having been advised in accordance with Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), may give up the right against self-incrimination and
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submit to a custodial police interrogation. Shatzer, 130 S. Ct. at 1219. And criminal
defendants may forgo their constitutional right to counsel to represent themselves.
Faretta, 422 U.S. at 807, 835. But they may not later complain about adverse
consequences resulting from their own conduct in waiving those rights. Faretta, 422 U.S.
at 834-35 & n.46 ("[W]hatever else may or may not be open to him on appeal, a
defendant who elects to represent himself cannot thereafter complain that the quality of
his own defense amounted to a denial of 'effective assistance of counsel.'"); Illinois v.
Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (criminal defendant
may lose Sixth Amendment right to be present at trial by continuing disruptive conduct
despite trial judge's warning that persistence will result in removal). That didn't happen
here, since Hargrove did not personally request the deficient jury instruction. Those cases
also really don't involve error—invited or otherwise—because the district courts made no
mistakes. They correctly followed the law by giving effect to valid, enforceable waivers.

Criminal defendants are generally bound by the actions of their lawyers, save for
decisions on whether to go to trial, to testify, or to appeal. Hill, 528 U.S. at 114-15
(noting rights personal to a criminal defendant and identifying decisions exemplifying
those a lawyer properly may make in the course of representation); see Roe v. Flores-
Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) (If a criminal
defendant requests a notice of appeal be filed, counsel's failure to comply must be treated
as "professionally unreasonable."); Faretta, 422 U.S. at 820 ("[W]hen a defendant
chooses to have a lawyer manage and present his case, law and tradition may allocate to
the counsel the power to make binding decisions of trial strategy in many areas."); Flynn
v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006); State v. Carter, 270 Kan. 426, 438-
39, 14 P.3d 1138 (2000) ("[T]actical decisions" such as filing motions, selecting jurors,
calling and examining witnesses are the sole province of the lawyer exercising
"professional skill and judgment."); 270 Kan. at 439 (In consultation with counsel, a
criminal defendant must personally decide whether to plead guilty or go to trial before a
judge or jury and whether to testify in his or her own defense.). Selection and phrasing of
proposed jury instructions come within those decisions entrusted to lawyers exercising
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their professional judgment. United States v. Perez, 116 F.3d 840, 845 n.7 (9th Cir.
1997); see Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (recognizing decision on
requested jury instructions to be matter for lawyer as part of trial strategy); Fitzgerald v.
Thompson, 943 F.2d 463, 469-70 (4th Cir. 1991) (same). Lawyers may compromise their
clients' constitutional rights. See, e.g., Taylor v. Illinois, 484 U.S. 400, 409, 418, 108 S.
Ct. 646, 98 L. Ed. 2d 798 (1988) (criminal defendant bound by his lawyer's actions
adversely affecting Sixth Amendment right to compulsory process and to present
witnesses); Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834
(1944) ("[A] constitutional right may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right."); United States v. Holmes, 620 F.3d 836,
843 (8th Cir. 2010) (counsel may waive defendant's Sixth Amendment confrontation
rights for "valid, tactical purposes"). Here, trial counsel impaired Hargrove's Sixth
Amendment right to have a jury decide all of the elements of attempted aggravated
burglary by tendering the instruction and then by failing to object when the district court
actually gave that instruction. We must decide whether the lawyer's conduct forecloses
relief for Hargrove on direct appeal.

Because the error arose from a jury instruction, the answer is less straightforward
than it otherwise might be. Most decisions a lawyer makes in trying a case are unilateral.
That is, they are made without input from opposing counsel or the trial judge. The lawyer
determines, for example, the witnesses to call, the questions to ask, and whether to
interpose objections to what his or her counterpart does. While the trial judge must rule
on objections, his or her function does not include consulting with counsel for either side
about the choice of evidence to present or objections to lodge.

Jury instructions, however, don't come about that way in a given case. The process
is collaborative rather than unilateral, and the trial judge ultimately controls the decision
on how to instruct a jury. Each side may suggest instructions to the trial judge, as
happened here. But a trial judge is not bound to give either side's suggested instructions
and has an independent duty to fashion a set of instructions that correctly informs the
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jurors of the relevant law. As with much else in the adversary process, if the parties agree
on a point, a trial judge commonly hasn't much cause or inclination to disregard their
common position. See Perez, 116 F.3d at 844. So it was on the elements instruction in
this case. Both the prosecutor and Hargrove's lawyer submitted proposed instructions that
omitted the elements of theft from what the jurors had to find the State proved to convict.
The trial judge accepted their communal position and gave that constitutionally infirm
instruction.

Blame for the foul-up could be apportioned in various ways. Our conclusion that
the elements instruction as proposed and given was erroneous breaks no new ground.
Long before Hargrove's trial, the Kansas Supreme Court settled how juries should be
instructed on the elements of burglary related offenses. See Linn, 251 Kan. at 802. The
State, therefore, arguably bears some responsibility because its representative both
proposed and acquiesced in the use of a recognizably defective instruction. See United
States v. Barrow, 118 F.3d 482, 491 (6th Cir. 1997) (government bears some
responsibility for defective elements instruction submitted jointly with defendant). Given
the paramount duty imposed on prosecutors to see that the adjudicatory process serves
the ends of justice even above securing convictions, the State ought not promote
instructions that impair a defendant's fundamental rights. See State v. Pabst, 268 Kan.
501, Syl. ¶ 6, 996 P.2d 321 (2000). In short, the State should have done better here.
Defense counsel also asked for the defective instruction and must be accountable in some
significant fashion for the request. The request may have been tactical or simply
inadvertent. We don't know. And, as we discuss later, the reason looms large in analyzing
how the erroneous instruction should be treated. The district court exercises final
authority over instructing a jury and the content of the instructions. See K.S.A. 22-
3414(3) (The district court "shall instruct the jury" and, in doing so, may refuse to give
requested instructions or may give them in a modified form.); e.g., State v. Dozier, 163
W. Va. 192, 196, 255 S.E.2d 552 (1979) ("The ultimate responsibility in criminal cases to
ensure the jury is instructed according to constitutional requirements must be placed on
the trial court."). So a district court could head off use of a bad instruction. Finally, unless
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this is a most unusual case, we may infer Hargrove played no role in fashioning the jury
instructions and, therefore, would be personally blameless for the error. Nothing at the
instruction conference even hints otherwise. Compare Angelo, 287 Kan. at 287 (At the
instruction conference, the district court secured defendant's personal consent to his
lawyer's request that no lesser included offenses be submitted to the jury in a first-degree
murder prosecution.).

The Kansas Code of Criminal Procedure addresses instruction of the jury in
considerable detail in K.S.A. 22-3414(3), governing the order of a trial. The statute
provides that a party may not assert error in a jury instruction without having precisely
objected to the instruction before it is given, unless the instruction is clearly erroneous.
The statute does not explicitly account for a party requesting an instruction and then
complaining on appeal because it was given to the jury. Arguably, those circumstances
come within the rule for clearly erroneous instructions to which no objection has been
lodged, since defendants typically would not object to instructions they had earlier
requested. But the Kansas appellate courts have consistently applied the invited error
doctrine to bar any review of an instruction a party has successfully asked the trial judge
give. See, e.g., Angelo, 287 Kan. at 279-80; Schreiner, 46 Kan. App. 2d at 788-89.

B. Considering the Caselaw

Having outlined those principles, we return to the question of how to assess the
invited error of Hargrove's counsel in soliciting a constitutionally defective elements
instruction. One approach would unconditionally bind Hargrove by the actions of his
lawyer despite the constitutional dimension of the resulting error and his own lack of
responsibility. The counterpoint would wholly untether him from the error precisely
because of those considerations. Neither extreme provides a satisfactory response. The
parties have supplied no controlling caselaw from either the United States Supreme Court
or the Kansas Supreme Court, and we have uncovered none. We discuss some Kansas
appellate decisions that consider peripheral points but ultimately do not lend themselves
18

to resolving this issue. A representative sampling of persuasive authority from elsewhere
provides some direction, though far from unanimous guidance.

i. Kansas law

In State v. Folley, No. 89,368, 2004 WL 1714918, at *1 (Kan. App. 2004)
(unpublished opinion), a panel of this court stated in dicta that "invited error cannot
trump a defendant's constitutional rights," including a due process requirement that the
jury find guilt beyond a reasonable doubt on each element of a charged offense. The
court, however, acknowledged the case before it did not present an invited error issue and
declined to elaborate on its terse observation or cite any directly applicable authority. The
decision mentions In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970), a case that recognized a defendant's right to have the State prove the elements of
an offense beyond a reasonable doubt but does not concern invited error at all. The
decision also cites State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994), in which
the court declined to apply the invited error rule to a defendant's claimed Doyle violation.
See Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)
(prosecutor violates defendant's right to due process by eliciting evidence defendant
chose to remain silent after law enforcement officers had provided Miranda warnings);
State v. Parks, 294 Kan. 785, 793-94, 280 P.3d 766 (2012) (outlining nature of a Doyle
violation). But the Gadelkarim decision lends no support to the assertion in Folley.

In response to a question from Gadelkarim's lawyer, a law enforcement officer
testified that Gadelkarim asserted his right to remain silent after receiving the Miranda
warnings. Without explaining why it sidestepped invited error, the Gadelkarim court
simply determined on the merits that the testimony amounted to harmless error. 256 Kan.
at 685-86. During a hearing on Gadelkarim's motion for a mistrial, the State argued
defense counsel knew or should have known the question would elicit the impermissible
testimony based on the officer's report. But defense counsel pointed to other portions of
the report to suggest he was surprised by the officer's answer. Perhaps given that
19

wrangling and in the absence of a fully developed evidentiary record on defense counsel's
thinking, the court pragmatically passed over invited error to reach the merits of the
point. But nothing in Gadelkarim suggests the invited error rule customarily ought to be
disregarded in the face of a constitutional defect in a criminal proceeding. As an
unpublished opinion, Folley is not precedential, and its collateral, undeveloped comment
is not persuasive. Neither Winship nor Gadelkarim speaks to the issue at hand.

In State v. Murray, 285 Kan. 503, 521-28, 174 P.3d 407 (2008), the court in fact
recognized that invited error principles had been and could be applied "in a very narrow
context" of Doyle violations when the defense attorney effectively has opened the door.
In that case, Murray's lawyer asked investigating officers if they had questioned Murray
about circumstances they considered potentially incriminating. The officers responded
they had not, thereby fostering the defense theory that investigators failed to fairly look at
alternative explanations for those circumstances. But the officers didn't ask Murray
because they couldn't—he had invoked his right against self-incrimination and declined
to speak with them. The court found the trial judge properly allowed the prosecutor to
briefly examine the lead detective about why those questions weren't put to Murray
during the investigation. The examination necessarily revealed Murray's assertion of his
constitutional right not to answer the questions. The court affirmed the ruling "in light of
the specific facts" because defense counsel's questioning of the lead detective "provided a
sufficient justification" for the prosecutor to ask the detective to explain the reason. 285
Kan. at 526. The court found: "[T]he detective's testimony on redirect examination
merely responded to defense counsel's implications during cross-examination and thus
was invited error and cannot be the basis for reversal." 285 Kan. at 526. A broadly
phrased rule drawn from Murray could be stated recognizing that a violation of a
defendant's constitutional rights should be excused as invited error. But teasing out that
sort of proposition would exceed any judicious reading of the decision.

The Murray opinion is almost certainly confined to Doyle violations and could not
fairly be extended to other constitutional rights. Nothing in the opinion suggests the court
20

intended a broader application, and a good deal of the language points to the very
opposite. In that case, as the court described the trial proceedings, Murray's lawyer
deceptively portrayed material facts, raising Doyle as an invisible shield against the
prosecutor in an effort to keep out otherwise relevant information that would have fully
informed the jury. In effect, the court held that Doyle could not be used to mislead jurors,
so the prosecutor's examination was proper. Looked at that way, there simply was no
error. Many other courts have expressly recognized a limited fair-reply exception to
Doyle. See Cook v. Schriro, 538 F.3d 1000, 1022 (9th Cir. 2008) ("We have interpreted
Doyle to allow prosecutors to comment on post-Miranda silence in response to defense
arguments."); United States v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir. 2008)
(noting continued recognition of fair-reply exception); United States v. Matthews, 20 F.3d
538, 552 (2d Cir. 1994) ("[W]hile comment on a defendant's silence is usually improper,
such comment may be permissible when the defendant, by the impression he has sought
to create, has opened the door."); United States v. Shue, 766 F.2d 1122, 1129 (7th Cir.
1985) (The rule of Doyle may yield because "[a] defendant should not be permitted to
twist his Miranda protection to shield lies or false impressions from government
attack."). The exception allows a surgical rebuttal confined to countering a cultivated and
deceptive depiction of the evidence rather than a wide open use of the defendant's silence
to prove guilt—the vice Doyle intended to eliminate. See Murray, 285 Kan. at 526
(prosecutor engaged in "limited questioning" of the detective about Murray's decision to
remain silent and did not mention it in closing argument); State v. Higgins, 243 Kan. 48,
49-52, 755 P.2d 12 (1988) (reversible error for prosecutor to dwell on defendant's
exercise of right to remain silent in questioning witnesses and in closing argument even
though issue first arose in response to question posed by defense counsel on cross-
examination).

The door-opening scenario of Murray does not come into play with jury
instructions. A defendant's proposed jury instruction opens no door in front of the jury
thereby "inviting" or necessitating some response from the prosecutor to rebalance an
impermissibly shaded evidentiary presentation that may also tread upon constitutional
21

protections. The lawyers propose, object to, and sort out jury instructions with the trial
judge, so the jury only becomes aware of instructions after they have been fully vetted
through that process. The error invited is that of the trial judge in giving a defective
instruction at the defendant's behest—something that does not directly implicate or flow
from the prosecutor's actions at all. Accordingly, Murray offers no directly applicable
rule either supporting or rejecting use of the invited error doctrine to discard
constitutionally based claims rooted in deficient jury instructions.

ii. Law in other jurisdictions

Other courts have struggled with this issue over the years with disarmingly varied
results. And more than a few courts have split in addressing the circumstances of a single
case. The authority we discuss offers an illustrative sampling reflecting both the array of
responses reconciling invited error and constitutional right and the intractability of the
issue.

For example, the Colorado Supreme Court concluded that invited error precluded
appellate review of a jury instruction defense counsel requested and the trial court used
that seemed to allow the jurors to convict even though the prosecution failed to prove
identity beyond a reasonable doubt. People v. Zapata, 779 P.2d 1307, 1308-09 (Colo.
1989). The court held: "The allegation of constitutional error in the jury instruction does
not require us to abandon the strict preclusion of review of invited error." 779 P.2d at
1309. But two concurring justices rejected an unyielding application of invited error in
the face of a constitutional defect. See 779 P.2d at 1310 (Quinn, C.J., concurring) ("I
would not apply the rule in such a manner as to preclude meaningful appellate review of
invited errors that raise a substantial question as to the underlying fairness and integrity
of the factfinding process."); 779 P.2d at 1312 (Lohr, J., concurring) ("The circumstances
. . . are so many and varied, and the potential consequences . . . are so severe, that we
would be best advised to address the issue of whether invited error requires reversal on a
22

case by case basis."). Neither concurring opinion discussed how to treat a defective
instruction sought as part of a defense strategy.

A unanimous Connecticut Supreme Court more recently took the same position as
the Zapata majority. See State v. Madigosky, 291 Conn. 28, 35 n.7, 966 A.2d 730 (2009).
And other appellate courts apply the invited error doctrine to bar review of even
constitutionally defective jury instructions defense lawyers have requested. See State v.
Perdue, 813 P.2d 1201, 1206 (Utah App. 1991) ("Here, we do not reach an evaluation of
the correctness of the submitted instruction because if there was error, it was invited by
the defendant, and where invited error butts up against manifest injustice, the invited
error rule prevails."); State v. Henderson, 114 Wash. 2d 867, 868-70, 792 P.2d 514
(1990). In a decision that did not involve jury instructions, the United States Court of
Appeals for the Seventh Circuit held last year that defense counsel invited an arguably
erroneous ruling from the trial judge, thereby preventing review of a claimed Sixth
Amendment violation on direct appeal. The court framed its holding as categorical and,
thus, without exception despite the constitutional character of the right. United States v.
Gaya, 647 F.3d 634, 639-40 (7th Cir. 2011).

The majority opinion from a deeply divided Washington Supreme Court in
Henderson typifies those that implacably apply the invited error doctrine, even to
constitutionally defective jury instructions. Henderson's lawyer requested the bad
instruction, and the error replicated exactly the one presented here. In a prosecution for
attempted burglary, the trial court, contrary to then-existing requirements of Washington
law, failed to inform the jury of the elements of the offense Henderson intended to
commit had he successfully broken into a home. The factual identity of the error really
gives the decision no more persuasive heft than cases involving other constitutionally
infirm instructions. Nothing about a burglary offense makes the omission of some of its
elements from a jury instruction any more or less pernicious.[1]

23

[1] Washington no longer requires that sort of instruction in burglary cases. See
State v. Bergeron, 105 Wash. 2d 1, 4, 711 P.2d 1000 (1985). In State v. Johnson, 100
Wash. 2d 607, 625, 674 P.2d 145 (1983), the Washington Supreme Court ruled that jury
instructions had to specify the elements of the intended offense making an unlawful entry
a burglary and made them part of the prosecution's required proof to convict. The ruling
bears similarities to Kansas law. See State v. Rush, 255 Kan. 672, Syl. ¶ 5, 877 P.2d 386
(1994). But the Washington Supreme Court overruled that position in Bergeron, 105
Wash. 2d at 4, given the broad definition of second-degree burglary requiring that the
perpetrator intend to commit any crime against a person or property upon entering the
premises. See Wash. Rev. Code § 9A.52.030 (2009). Henderson committed his offense
during the 2-year window between Johnson and Bergeron, and, therefore, everyone
agreed he was entitled to the benefit of Johnson.

The Henderson majority, in a 5-4 decision, recognized the instruction
compromised a criminal defendant's constitutional right to have the jury decide every
element of the charged offense. Henderson, 114 Wash. 2d at 870-71. But the court held
the long-standing invited error doctrine precluded review because Henderson's lawyer
proposed the instruction: "[E]ven if error was committed, of whatever kind, it was at the
defendant's invitation and he is therefore precluded from claiming on appeal that it is
reversible error." 114 Wash. 2d at 870. Otherwise, the majority reasoned, the court would
reward defendants for misleading trial judges. 114 Wash. 2d at 868.

The dissenters in Henderson acknowledged that the invited error doctrine had the
primary purpose of discouraging "'a party from setting up an error at trial and then
complaining of it on appeal' [because] 'the adversary system cannot countenance such
maneuvers.'" 114 Wash. 2d at 873 (Utter, J., dissenting) (quoting State v. Pam, 101
Wash. 2d 507, 511, 680 P.2d 762 [1984]). But they would not have applied the doctrine
as an impregnable barrier, thereby allowing "more flexibility when the error is
unintentional." 114 Wash. 2d at 873. The bar of invited error "should . . . give way when
constitutional rights are involved and the flawed instruction was not proposed to
deliberately create error." 114 Wash. 2d at 876. The dissenters assumed, without
explanation, that defense counsel proposed the defective instruction through inadvertence
and, therefore, would have reversed Henderson's conviction. See 114 Wash. 2d at 878-79.

24

Other courts align with the Henderson dissenters to permit review of invited errors
to correct "manifest injustice," unless they result from a waiver—"the intentional
relinquishment of a known right." United States v. Rodriguez, 602 F.3d 346, 350-51 (5th
Cir. 2010); see Barrow, 118 F.3d at 491 (court recognizes exception to invited error rule
"when the interests of justice demand otherwise" and applies exception to review
defective jury instruction jointly submitted by prosecution and defense); Zapata, 779
P.2d at 1310 (Quinn, C.J., concurring) (The invited error doctrine should be discounted to
reach trial defects, including instructions, going to "the underlying fairness and integrity"
of the proceedings.); Dozier, 163 W. Va. at 196. Waiver renders an asserted error
unreviewable. See United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed.
2d 508 (1993) (considering waiver and forfeiture under Federal Rule of Criminal
Procedure 52); United States v. Laurienti, 611 F.3d 530, 543 (9th Cir. 2010) (If a
defendant invites an error and, in doing so, relinquishes a known right, the error has been
waived and becomes unreviewable.); Rodriguez, 602 F.3d at 350-51; Perez, 116 F.3d at
845. The Ninth Circuit Court of Appeals declined to find invited error or waiver based on
defense counsel's endorsement of the trial court's defective elements instruction as a
"'complete and accurate'" statement of what the government had to prove because the trial
record "clearly indicate[d]" both the judge and the lawyer misunderstood the applicable
law. United States v. Alferahin, 433 F.3d 1148, 1154 n.2 (9th Cir. 2006).

The West Virginia Supreme Court, in a prototypical decision, declined to apply
invited error when defense counsel offered and the trial judge used an instruction
containing an unconstitutional presumption as to the elements of murder—contrary to a
controlling decision handed down a year before the trial. Dozier, 163 W. Va. at 194-97.
The court held that barring review on that basis "would be a travesty of justice" given the
"fundamental constitutional right" compromised in the requested instruction. 163 W. Va.
at 196. The court found it "extremely unlikely" that the defendant understood a
constitutionally defective instruction had been tendered on her behalf or that she had
made any informed waiver of her rights. 163 W. Va. at 196. The court similarly
concluded defense counsel had entertained no "deliberate trial strategy or tactic" in
25

requesting the instruction. Rather, the instruction reflected "an unfortunate mistake." 163
W. Va. at 197. The court, however, suggested, ever so gently, that the decision might
have been different if "defense counsel deliberately created error at trial to get a reversal
in the event of a conviction." 163 W. Va. at 197.

In two cases, the United States Court of Appeals for the Sixth Circuit entertained
challenges to allegedly erroneous jury instructions defining the charged crimes when the
prosecution and defense counsel jointly submitted the instructions. United States v.
Savoires, 430 F.3d 376, 381 (6th Cir. 2005); Barrow, 118 F.3d at 491. The courts
excused rigorous application of the invited error doctrine because the government bore
essentially equal fault for the defective instructions. Savoires, 430 F.3d at 381; Barrow,
118 F.3d at 491. In neither case did the court consider whether the defendant's lawyer
knew of the defect or consented to the bad instruction for tactical reasons. Nor did the
decisions draw any legal distinction between invited error and waiver, as have some
courts. In Savoires, the panel found the instruction substantially misstated what the jury
had to find to convict of a federal firearms offense, largely conflating two separate
offenses and, thus, disadvantaging the defendant. The panel concluded that "the interests
of justice" required review of the error and reversal of the conviction. Savoires, 430 F.3d
at 381. In Barrow, an earlier panel similarly concluded invited error would not bar review
of a jointly submitted, defective elements instruction. Barrow, 118 F.3d at 491. But
anticipating the United States Supreme Court's position in Neder v. United States, 527
U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the panel found no negative effect on
the defendant's rights because the omitted element was "not seriously contested at trial"
and embraced an "obviously technical" aspect of the banking fraud charge. Barrow, 118
F.3d at 492-93. In each of those cases, the instructional error afforded the defendant no
apparent tactical advantage and, more likely, aided the government to some extent.

The Illinois Supreme Court staked out a similar position in People v. Bender, 20
Ill. 2d 45, 54, 169 N.E.2d 328 (1960), relaxing the invited error bar to consider a
constitutional defect in an instruction defense counsel requested because he, the
26

prosecutor, and the trial judge proceeded on the mistaken understanding the instruction
correctly described the burden of proof on insanity. In that circumstance, the court held
the doctrine yields to a mistake making it "impossible for the defendant to receive a fair
and impartial trial." 20 Ill. 2d at 54.

Much of the federal caselaw has been shaped around Federal Rule of Criminal
Procedure 52(b), permitting correction of "plain error that affects substantial rights" even
when it has not been called to the attention of the trial court, and the United States
Supreme Court's interpretation of that rule in Olano, 507 U.S. at 731-37. Neither Rule
52(b) nor Olano specifically addresses invited error, but Olano recognizes that waiver of
a right precludes appellate review of any claimed error. 507 U.S. at 733. In that respect,
Rule 52(b) appears roughly comparable to K.S.A. 22-3414 with regard to jury
instructions, and Olano's treatment of waiver is similar to the Kansas appellate court's
approach to invited error. At the very least, the federal authority helps illuminate the
multiple legal facets of the issue.

Various courts, however, only loosely define waiver and invited error. Some
essentially equate the terms and find either imposes a near absolute bar to appellate
review. See Gaya, 647 F.3d at 640 (invited error "is an a fortiori case of waiver"); United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997). Others draw a distinction finding that
waiver results from an intentional relinquishment of a known right. 116 F.3d at 845. An
invited error may be a waiver if the lawyer or party asking the court to act in a certain
way understands that the action will impair or extinguish a right. United States v.
Quinones, 511 F.3d 289, 321 (2d Cir. 2007) ("true waiver applies" when defendant
"actively solicited" and received jury instruction "to procure a perceived . . . benefit").
But the lawyer or party may ask without having that understanding. The error is still
invited, although some appellate courts will treat it as something short of an impregnable
waiver. See United States v. Barrow, 118 F.3d 482, 490-91 (6th Cir. 1997) (Invited error
"is a branch of the doctrine of waiver" that may yield to "the interests of justice," as
where both the government and the defense jointly requested a defective jury
27

instruction.); Perez, 116 F.3d at 845. The Kansas appellate courts often have drawn no
particular distinction between waiver and invited error and treat them both as precluding
appellate review of claims based on statutory rights. See State v. Dunlap, 46 Kan. App.
2d 924, 934-35, 266 P.3d 1242 (2011), petition for rev. filed December 30, 2011; State v.
Romero, No. 105,158, 2012 WL 2924537, at *3-4 (Kan. App. 2012) (unpublished
opinion), petition for rev. filed August 13, 2012; State v. Rivera, No. 92,569, 2005 WL
3527001, at *3 (Kan. App. 2005) (unpublished opinion), rev. denied 281 Kan. 1381
(2006).

Judge Harold Leventhal, of the District of Columbia Circuit Court of Appeals,
once described judicial consideration of legislative history as akin to "'looking over a
crowd and picking out your friends.'" Wald, Some Observations on the Use of Legislative
History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983); see Exxon
Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568, 125 S. Ct. 2611, 162 L. Ed.
2d 502 (2005). The same might be said about the persuasive authority balancing invited
error with constitutional defects in jury instructions. There are cases supportive of about
any outcome. Some opinions offer little more than rote. Others rest on more developed
discussions, though occasionally neglecting to account for the purpose behind the invited
error rule. So from them, we take what we need and leave the rest. See Robertson, "The
Night They Drove Old Dixie Down," The Band (1969).

4. Forging Reconciliation

In reconciling invited error and resulting constitutional defects in jury instructions
adversely affecting criminal defendants, we balance competing considerations bound up
in fairness—individual fairness for the person standing as the accused and institutional
fairness for the system as an adjudicatory process. See Neder, 527 U.S. at 18-19. If the
lawyer representing a criminal defendant makes a calculated decision to sacrifice certain
constitutionally protected interests of his or her client for tactical advantage in attaining
an acquittal and in doing so induces the district court to act or rule in particular ways,
28

then those actions or rulings generally cannot be asserted as points of error on direct
appeal of a conviction. To hold otherwise would invite game-playing and manipulation
incompatible with a fair adjudicatory process. See Henderson, 114 Wash. 2d at 868 (Less
than strict application of the invited error rule to jury instructions "would put a premium
on defendants misleading the court; this we decline to encourage."). At the same time,
however, an invited error of constitutional import in a jury instruction should not be
immune from review on direct appeal if defense counsel requested the instruction through
inadvertence and without strategic designs. To hold otherwise would deprive an accused
of individual fairness.

The adversary system embodied in this nation's courts operates on the assumption
that justice may best be harnessed when the disputants test each other's legal theories and
factual portrayals before detached observers—judges or jurors—charged with resolving
those disputes. See United States v. Cronic, 466 U.S. 648, 655, 104 S. Ct. 2039, 80 L. Ed.
2d 657 (1984) ("'The very premise of our adversary system of criminal justice is that
partisan advocacy on both sides of a case will best promote the ultimate objective that the
guilty be convicted and the innocent go free.'") (quoting Herring v. New York, 422 U.S.
853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 [1975]); GTE Sylvania, Inc. v. Consumers
Union, 445 U.S. 375, 382-83, 100 S. Ct. 1194, 63 L. Ed. 2d 467 (1980) ("The clash of
adverse parties '"sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult . . . questions."'"); State v. Bellinger, 47 Kan. App.
2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J., dissenting) ("The judicial process treats
an appearance on the witness stand, with the taking of an oath and the rigor of cross-
examination, as perhaps the most discerning crucible for separating honesty and accuracy
from mendacity and misstatement."), petition for rev. filed July 23, 2012. But the process
is far from a free-for-all. There are distinct rules of engagement designed to promote
orderliness and, more importantly, basic fairness. Procedural and evidentiary codes set
forth many of those rules; others reflect judge-made requirements born of practical
experience. Some—particularly those insuring fairness for the accused—derive from
constitutional guarantees, notably in the Fourth, Fifth, Sixth, and Fourteenth
29

Amendments to the United States Constitution and their counterparts in the Kansas
Constitution Bill of Rights.

For example, in criminal cases, the prosecution must disclose exculpatory
information to a defendant in advance of trial because the process would otherwise be
unfairly skewed. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L.
Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963). A defendant must formally identify a limited number of defenses that
particularly lend themselves to testing through further investigation. E.g., K.S.A. 22-3218
(alibi); K.S.A. 22-3219 (mental disease or defect). The failure to abide by those
obligations has consequences. For the State, convictions may be reversed; for defendants,
defenses may be lost.

The doctrine of judicial estoppel similarly advances notions of fair play by
precluding a party from inducing judicial action by taking one legal position and then
taking a contrary position later to achieve further advantage over the same adverse party.
See Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 262-63, 261 P.3d 943
(2011). The United States Supreme Court recognized that the doctrine "'generally
prevents a party from prevailing in one phase of a case on an argument and then relying
on a contradictory argument to prevail in another phase.'" New Hampshire v. Maine, 532
U.S. 742, 749, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (quoting Pegram v. Herdrich,
530 U.S. 211, 227 n.8, 120 S. Ct. 2143, 147 L. Ed. 2d 164 [2000]). A court may apply
judicial estoppel in its discretion as necessary to preserve "'the essential integrity of the
judicial process.'" New Hampshire, 532 U.S. at 750.

Those statutory rules and common-law doctrines advance a process designed to
discourage unfair manipulation for tactical advantage and to minimize any effects when it
happens. They tend to impose penalties or counterbalances to accomplish that objective.
The fair-reply exception engrafted on to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49
L. Ed. 2d 91 (1976), and the parallel holding in State v. Murray, 285 Kan. 503, 526, 174
30

P.3d 407 (2008), similarly operate to preserve a fair adjudicatory process. They are all of
a kind in that service. The invited error doctrine is part and parcel of those safeguards.
And it has central attributes comparable to judicial estoppel. See Key Pharmaceuticals v.
Hercon Laboratories Corp., 161 F.3d 709, 715 & n.1 (Fed. Cir. 1998) (noting similarity
in operation and purpose of invited error and judicial estoppel in "prohibit[ing] a party
from asserting as 'error' a position that it had advocated at the trial"). Both are premised
on one party trying to shift legal arguments on an issue during a case, and both seek to
protect the fairness of the process by requiring an advocate to adhere to an argument that
has caused the court to act in a particular way. Judicial estoppel simply imposes
consistency of position on an advocate who has persuaded the court in conformity with
that position. The invited error doctrine prevents a more destructive practice—a party
claiming the trial court committed reversible error by acting in the very manner that the
party advocated.

If Hargrove's lawyer made a tactical decision to request a jury instruction on
attempted aggravated burglary that omitted the elements of theft, then the invited error
doctrine should be applied on direct appeal to bar a claim that the conviction be reversed
based on that omission. Lawyers may deploy strategies compromising certain of their
client's rights in pursuit of an ultimate advantage, but they cannot then bank any judicial
action they request as a deposit against reversible error when that advantage fails to
materialize. A contrary rule would permit manipulation of the adversary process in a way
that inflicts a deep wound on the systemic fairness vital to that process. The danger is no
less when the rights compromised for strategic purposes rise to a constitutional level.

In short, the system depends upon holding advocates to their strategic choices and
representations. See State v. Schreiner, 46 Kan. App. 2d 778, 791, 264 P.3d 1033 (2011)
(The criminal justice system ought to discourage at every opportunity unprofessional and
destructive game-playing.), petition for rev. filed December 5, 2011; State v. Kitchens,
299 Conn. 447, 470, 10 A.3d 942 (2011) (In considering invited error based on a
requested and defective jury instruction, the court, using the bracketed language,
31

observed: "'[T]o allow [a] defendant to seek reversal [after] . . . his trial strategy has
failed would amount to allowing him to ambush the state [and the trial court] with that
claim on appeal.'"). Giving full play to the invited error rule in those circumstances
comports with the settled principles that a criminal defense lawyer's strategic
determinations bind his or her client and that the lawyer may relinquish the client's
constitutional rights, including having a jury decide each element of a charged offense.

The record in this case is silent on why Hargrove's lawyer requested the defective
elements instruction the district court wound up giving the jury. Nothing really points
toward a tactical decision to leave out the theft elements over an inadvertent omission of
them or the other way around. In some cases, the record plainly reveals a strategic call.
See State v. Angelo, 287 Kan. 262, 279, 197 P.3d 337 (2008) (Defense counsel requested
no lesser included offense instructions be given specifically to force the jurors into a
choice between convicting the defendant of first-degree murder or acquitting him.);
Quinones, 511 F.3d at 320-21. Here, however, the district court seemingly failed to
recognize the error, something not entirely surprising, since both the State and Hargrove
requested virtually the same flawed instruction. At the instruction conference, the district
court neither remarked on the instruction nor asked the lawyers if they intentionally left
out the elements of theft. Had the district court realized the irregularity, such an inquiry
likely would have helped clear up matters. If we were to assume lacked a tactical basis,
then Hargrove's lawyer would have had an opportunity to reconsider and tender a
complete elements instruction. We presumably would not now be addressing this issue.
Conversely, if Hargrove's lawyer considered the abbreviated instruction tactically
superior, he would have said as much—at least giving us a plain statement on the
record.[2]

[2] The district court would not have had to do any more than secure the lawyer's
acknowledgement that he tendered the instruction to confer some advantage on Hargrove.
And the district court probably would have intruded unduly into work-product and
possibly attorney-client privileges to require the lawyer to divulge the particular strategic
attributes he imputed to the instruction.

32

Although we fail to see any overt tactical advantage to Hargrove in the elements
instruction his lawyer tendered and the district court gave, we cannot say the instruction
must have been the product of inadvertence or inattention. There may be factors
informing the choice that are obscure or wholly invisible in the appellate record. See
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
("There are countless ways to provide effective assistance in a given case."). By way of
contrast, some instructional errors could not possibly reflect reasonable strategic choices.
See, e.g., State v. Carson, 1 Hawaii App. 214, 215-16, 617 P.2d 573 (1980). In Carson,
the trial court gave an instruction defense counsel tendered stating that the defendant had
to prove self-defense by a preponderance of the evidence when the State actually bore the
burden of negating that evidence in proving the defendant guilty beyond a reasonable
doubt. No sound strategy could warrant a defendant assuming a heavier burden of proof
than required under the law in establishing a defense. This is not such a case. The
elements instruction here contains no comparable error incontestably devoid of strategic
worth. Because the instruction might have been part of Hargrove's defense strategy and
the district court honored Hargrove's request it be used, we find that the invited error
doctrine precludes direct appellate review premised on the constitutional defect in the
instruction. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008) (A criminal
defendant has the obligation to designate a record sufficient to support a claim of
reviewable error on appeal.).

In most cases, civil or criminal, the district court record contains little or no
evidence about the advocates' thought processes shaping their respective legal arguments
and factual presentations. In turn, appellate courts typically cannot and do not entertain
issues on direct appeal requiring an exploration of a criminal defense lawyer's tactical
decisions or preparation of the case. See Rowland v. State, 289 Kan. 1076, 1083-84, 219
P.3d 1212 (2009) (Claims based on counsel's ineffectiveness and, thus, his or her trial
strategies are seldom amenable to review on direct appeal because there has been "no
chance to develop facts and present evidence in support of or in derogation of the quality
of the trial representation."); State v. Van Cleave, 239 Kan. 117, Syl. ¶¶ 1, 2, 716 P.2d
33

580 (1986) (An appellate court typically will not hear an ineffective assistance claim on
direct appeal, but counsel may seek remand to the district court for a hearing to develop
the claim.). This appeal falls in that category. Hargrove's appellate counsel did not
request remand to the district court for a hearing to develop that evidence. See Rowland,
289 Kan. at 1084 (appellate counsel may ask for remand to hold Van Cleave hearing).

Some courts treat a silent record—one failing to disclose that the faulty jury
instruction resulted from a tactical decision of counsel—as insufficient to interpose a
waiver or invited error on the assumption that the mistake may as likely have been
inadvertent. See Perez, 116 F.3d at 842, 844-46. Those courts reason that the record does
not affirmatively demonstrate that the defense lawyer knowingly invited the diminution
of his or her client's rights. See 116 F.3d at 844-47. And they then apply a clear or plain
error standard of review, commonly used when a lawyer simply fails to object to an
instruction the trial court has proposed. See 116 F.3d at 842, 846-47. Their approach
seems flawed in several respects. First, it imputes meaning to a silent record that cannot
be inferred and should not be presumed on any logical basis. Second, it rewards a lawyer
for deliberate but stealthy manipulation of the process. If the lawyer can get by without
having to acknowledge that he or she has proposed an otherwise defective instruction for
strategic advantage, he or she both achieves that advantage, having induced the trial court
to use the erroneous instruction, and avoids being bound by the strategy after it has failed.
So a rule treating a silent record that way ultimately discourages candor between counsel
and the trial court in fashioning jury instructions.

The more pragmatic approach we adopt would defer review of the flawed
instruction until the ambiguity of a silent record has been resolved through an appropriate
evidentiary hearing. The review would then be based on facts rather than artificial
presumptions. In the absence of a developed record, we have declined to take up the
merits of Hargrove's challenge to the elements instruction on this appeal.

34

If the record here had established that the defect in the elements instruction were
the product of inadvertence or negligence, we recognize a compelling argument could be
made for reaching the merits on direct appeal notwithstanding invited error principles.
Were our view otherwise, much of the discussion to this point would have been
superfluous. A simple, unqualified application of invited error would have sufficed to
affirm. But invited error is a judge-made doctrine aimed at curtailing manipulative tactics
inducing trial courts to make mistakes that otherwise might require reversal of an adverse
verdict. As a judicially created rule, it should be tailored as necessary to serve its
particular purpose without unnecessarily thwarting the ends of justice.

Those dual goals are best served in applying invited error to bar review of
defective instructions requested for strategic objectives, thereby removing incentives for
conduct deliberately destructive of the systemic fairness of the adjudicatory process. The
need to maintain the integrity of the process supersedes calculated strategies that gamble
for tactical advantage rights securing individual fairness. That sort of gamble amounts to
a true waiver. We decline to presume the absence of a tactical motive or purpose from an
ambiguous record.

But when the record shows that an instructional defect results from a defense
lawyer's negligence or inadvertence and compromises a constitutional right, the reason
for invoking the invited error rule has considerably less force. Lawyers have no incentive
to act negligently or inadvertently in ways that impair their clients' constitutional
protections. Those actions fall short of a waiver, since carelessness does not amount to a
knowing relinquishment. Applying the invited error rule to them has only limited
deterrent value, although lawyers might be prompted to craft jury instructions with more
care. The defendant, however, loses direct appellate review of unintended errors
impairing his or her fundamental rights. And extending the rule to negligent or
inadvertent mistakes makes the rule no more effective in preventing deliberate injection
of error for tactical advantage, its principal purpose. The outcome, at best, only
35

marginally advances systemic fairness and does so by exacting a heavy price in
individual fairness.

Even if the invited error rule might be appropriately applied to common trial
decisions that unintentionally compromise a given defendant's constitutional rights, it
ought to be relaxed for those deficiencies in jury instructions. Absent tactical intent on
counsel's part, the shared responsibility for preparing final jury instructions weighs
against rigid application of invited error to deflect a constitutional challenge. In any
particular case, the circumstance still might call for applying invited error to bar review
of a defective instruction. The myriad rights at stake and the fact-specific determination
of the reasons for and harm caused by the error defy formulaic assessment through
generic criteria or some preset multifactor test.

We do not consider the intersection of invited error and structural error. It
represents quite another place on the judicial map. Although the same general policies
and considerations likely inform that issue, they might well be balanced differently for
some or all structural errors. Among constitutional defects, structural errors stand apart
because, by definition, they undermine the integrity of the adjudicatory process and,
therefore, cannot be excused even if a defendant may be unable to demonstrate actual
harm. See Neder, 527 U.S. at 8-9 (Structural errors "infect the entire trial process" and
"deprive defendants of 'basic protections'" essential to the reliable functioning of the
criminal justice process; as such, they "defy harmless-error review.") (quoting Rose v.
Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 [1986]). Invited structural
errors exist, see State v. Banks, No. 105,953, 2012 WL 6061553, at *3-5 (Kan. App.
2012) (unpublished opinion), but they are rare birds. The constitutional error in this case
is not structural, rendering our analysis plainly distinguishable on that basis. See 2012
WL 6061553, at *3-5 (panel declines to apply invited error rule and reviews defective
reasonable doubt instruction that effectively permits State to convict by proving one
element of the charged offense rather than all of them, thereby creating structural error).

36

By the same token, what we have decided today does not change the ironclad
application of the invited error rule to preclude direct appellate review of points premised
on statutory rights. Because those rights lack the fundamental qualities of constitutional
protections, they may be irretrievably lost on direct appeal to invited error. As we have
said, that is settled law. See Angelo, 287 Kan. at 279-80; Schreiner, 46 Kan. App. 2d at
789-91. The loss, whether prompted by tactics or inadvertence, sufficiently promotes
systemic fairness and some measure of lawyer diligence so as to outweigh the diminution
of statutory protections.

5. Hargrove Retains Postconviction Remedies

Although we have rejected Hargrove's asserted instructional error because the
present record fails to show that his lawyer lacked a tactical objective, Hargrove has a
way to raise the issue. After concluding his direct appeal, Hargrove may file a motion for
habeas corpus relief, under K.S.A. 60-1507, based on any denial of his constitutional
rights, including the effective assistance of trial or appellate counsel. In that proceeding,
Hargrove would have the opportunity to develop a record regarding his trial lawyer's
strategic decision, if any, regarding the elements instruction and other aspects of his
district court representation. See Kitchens, 299 Conn. at 496-97 (noting availability of
habeas corpus relief and likely superiority of that vehicle for determining if trial counsel's
position on a disputed jury instruction arose from "strategy" or "incompetence"); but see
People v. Zapata, 779 P.2d 1307, 1311 & n.2 (Colo. 1989) (Quinn, C.J., concurring)
(noting most invited errors are the product of inadvertence and suggesting habeas corpus
relief, therefore, comes late for an incarcerated defendant denied review on direct
appeal).

To obtain K.S.A. 60-1507 relief, Hargrove would have to show that trial counsel's
performance, based on the totality of circumstances, "fell below an objective standard of
reasonableness." Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). If so, Hargrove
37

would then have to demonstrate prejudice resulting from the substandard representation
to the extent that he would have had "a reasonable probability" of success at trial had he
been adequately represented, meaning judicial "confidence in the outcome" has been
"undermine[d]." See 283 Kan. at 90. The measure of the lawyer's representation outlined
in Bledsoe mirrors the standard in Strickland, 466 U.S. at 687-88, 694. See Chamberlain
v. State, 236 Kan. 650, Syl. ¶¶ 2-4, 694 P.2d 468 (1985) (adopting and stating Strickland
test for ineffective assistance); see also Holmes v. State, 292 Kan. 271, 274-75, 252 P.3d
573 (2011) (noting standard and applying it to appellate representation on direct appeal).
The Kansas Supreme Court recently reiterated the standard in Edgar v. State, 294 Kan.
828, 837-38, 283 P.3d 152 (2012).

As both the United States Supreme Court and the Kansas Supreme Court have
noted, review of the representation should be deferential and hindsight criticism tempered
lest the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. Strickland, 466 U.S. at 689-90; Holmes, 292
Kan. at 275. Rarely should counsel's representation be treated as substandard when he or
she investigates the client's circumstances and then makes a deliberate strategic choice
among multiple options. Strickland, 466 U.S. at 690-91. But that is not invariably so. A
defendant may show that trial counsel's "representation was unreasonable under
prevailing professional norms and that the challenged action was not sound strategy."
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986);
see Phoenix v. Matesanz, 233 F.3d 77, 82 n.2 (1st Cir. 2000) (decision of trial counsel not
strategic within scope of Strickland if "'the choice was so patently unreasonable that no
competent counsel would have made it'"); Hart v. Gomez, 174 F.3d 1067, 1071 (9th Cir.
1999) (ineffectiveness portion of Strickland test satisfied where "no reasonable strategy
. . . could account for defense counsel's failure to introduce this [readily available]
corroborating evidence").

If Hargrove's counsel had no plausible strategy for requesting the defective
instruction or he simply proposed the instruction without recognizing or considering the
38

omission of the elements of theft, the ineffectiveness portion of Strickland typically
would be satisfied. Hargrove then could obtain habeas corpus relief by showing the
defect in the instruction undermined the trial process, costing him a reasonable
probability of an acquittal. As the Edgar court explained, a defendant has demonstrated
adequate prejudice if he or she has been "deprive[d] . . . of a fair trial." 294 Kan. at 837.
The "'"benchmark"'" becomes "'"whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result."'" 294 Kan. at 837.

The particular test laid out in Neder v. United States, 527 U.S. 1, 17, 119 S. Ct.
1827, 144 L. Ed. 2d 35 (1999), and State v. Richardson, 290 Kan. 176, 182-83, 224 P.3d
553 (2010), for prejudice to a criminal defendant when an element of the charged offense
has been omitted from the jury instructions would provide an initial measurement. A
showing of prejudice based on those criteria would not invariably establish that the trial
process had sufficiently misfired to call into question the justness of the result. But when
the omitted element has been contested and some evidence offered upon which a jury
might find reasonable doubt, little more might be necessary on habeas review. The Neder
decision at least suggests as much. See 527 U.S. at 19. The Court pointed out that
calibrating the impact of an omitted element may be difficult when the defendant has
offered evidence tending to negate it. 527 U.S. at 18. So the decision seems to say that a
court reviewing the record could properly conclude "the purposes of the jury trial
guarantee" had been scuttled "where the defendant contested the omitted element and
raised evidence sufficient to support a contrary finding"—that is, a reasonable doubt as to
guilt. 527 U.S. at 19.

We do not mean to imply how a habeas corpus motion ought to be argued or
resolved, especially in the absence of any evidentiary record on trial counsel's handling of
the elements instruction. Our discussion merely points up Hargrove's avenue for review
of the constitutional defect in the instruction, since the very existence of that route figures
39

materially in affording the invited error doctrine primacy over tackling the issue on direct
appeal.

SUFFICIENT EVIDENCE SUPPORTED JURY VERDICT

Hargrove contends the State presented insufficient evidence at trial to support his
conviction for attempted aggravated burglary. We disagree and reject that contention.

In reviewing a sufficiency challenge in a criminal case, an appellate court
construes the evidence in a light most favorable to the party prevailing below, here the
State, and in support of the jury's verdict. The court will neither reweigh the evidence
generally nor make credibility determinations specifically. State v. Raskie, 293 Kan. 906,
919-20, 269 P.3d 1268 (2012); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006).
The issue for review is simply whether rational jurors could have found the defendant
guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030
(2011). Circumstantial evidence alone may yield a conviction if each element of the
offense can be supported. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).

As outlined in the jury instruction, the State had to prove that Hargrove undertook
an overt act aimed at committing an aggravated burglary and did so with the particular
intent to carry out the burglary but then failed to complete the offense. The instruction
correctly informed the jury that overt acts exceed "mere preparation[s]" for a criminal
offense and entail "step[s] in a direct movement toward" perpetrating the crime. See State
v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010). In turn, the instruction listed the
elements of the completed offense of aggravated burglary applicable to Hargrove's
prosecution: (1) knowingly entering or remaining in a residence; (2) without authority;
(3) with the intent to commit a theft; and (4) while a human being was in the building. As
we have discussed, the instruction improperly omitted the elements of theft as the
underlying crime the State alleged Hargrove intended to commit inside Geither's home.
Those elements would have required the jury to find Hargrove intended to permanently
40

deprive Geither of his property by "exerting unauthorized control" over that property. See
K.S.A. 21-3701(a)(1). The value of any property Hargrove intended to take would have
been immaterial, since either a felony theft or a misdemeanor theft supports an
aggravated burglary charge.[3]

[3] The crime of aggravated burglary is not limited to residences and extends to
other occupied structures or vehicles. See K.S.A. 21-3716. The underlying crime need
not be a theft. Many other offenses, including any felony, will elevate an unlawful entry
into a burglary or aggravated burglary. See K.S.A. 21-3715; K.S.A. 21-3716. And a
defendant need not know that the building is occupied to commit an aggravated burglary.
State v. Watson, 256 Kan. 396, 400-01, 885 P.2d 1226 (1994). The State would also have
to prove the offense happened in Johnson County, Kansas, within the statute of
limitations period. Venue and timeliness were undisputed.

Hargrove seizes on the split verdict the jury returned to contend evidence
indicating he tampered with the telephone box or started prying open the back door
cannot be considered in support of the attempted aggravated burglary because he was
acquitted of the criminal damage to property charge. But the argument misconstrues the
law. This court may consider evidence relevant to both charges in deciding whether the
record supports the jury's guilty verdict on attempted aggravated burglary irrespective of
the not guilty verdict on the criminal damage to property charge. See State v. Beach, 275
Kan. 603, 614-20, 622, 67 P.3d 121 (2003) (court reviews sufficiency of the evidence
challenge to felony-murder conviction based on all of the record evidence even though
jury acquitted defendant of predicate crime of aggravated robbery); State v. Chaffee, 36
Kan. App. 2d 132, 136-38, 137 P.3d 1070 (2006). The United States Supreme Court
addressed the same issue in United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 83
L. Ed. 2d 461 (1984), and came to the same conclusion. The Court largely relied on
reasoning Justice Holmes set forth half a century earlier in Dunn v. United States, 284
U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). Powell, 469 U.S. at 62-65. Hargrove
points to nothing suggesting the law has taken some turn away from Dunn or Powell in
the last 30 years. The Beach decision supports their continued vitality. 275 Kan. at 617-
20.
41


In Powell, a unanimous Supreme Court acknowledged that a jury's not guilty
verdict on one charge may appear inconsistent with its guilty verdict on another charge
against the same defendant. But a reviewing court typically should not try to look behind
the verdicts to discern a particular motive, purpose, or meaning in the jury's actions. See
469 U.S. at 64-65. The jurors might have been confused about how to perform their duty,
resulting in seemingly discordant verdicts. Or they may have chosen to show lenity
toward the defendant by returning a not guilty verdict on one or more charges despite the
evidence and the instructions—exercising the absolute, if unsanctioned, power of
nullification afforded juries in criminal cases. A court, however, cannot insightfully
analyze the basis for the result and, therefore, ought not impute a particularized meaning
to it. 469 U.S. at 65-67. Delving into a jury's verdicts to accurately discern what may
have prompted them insinuates the court into processes that have typically and
traditionally been treated as nearly sacrosanct. 469 U.S. at 67.

In turn, the Powell Court recognized that inconsistent verdicts should not influence
the review of a defendant's challenge to the sufficiency of the evidence supporting the
offense on which a jury brought back a guilty verdict. The Court stated: "Sufficiency-of-
the-evidence review involves assessment by the courts of whether the evidence adduced
at trial could support any rational determination of guilty beyond a reasonable doubt.
[Citations omitted.] This review should be independent of the jury's determination that
evidence on another count was insufficient." 469 U.S. at 67. The Kansas Supreme Court
embraced the reasoning of Powell and drew heavily from that decision in Beach, 275
Kan. at 618-20.

Those cases necessarily guide our determination of what evidence we may
consider in weighing Hargrove's sufficiency challenge. In those cases, the juries brought
back not guilty verdicts on charges that entailed predicate conduct directly tied to the
charges on which they returned guilty verdicts. The not guilty verdicts were truly
inconsistent with the guilty verdicts. But the inconsistency did not curtail the scope of
42

evidence properly considered in deciding a defendant's claim that insufficient evidence
supported his or her conviction.

If anything, that approach should be more readily applied to a case such as this
because the criminal damage to property charge is not a legally necessary predicate for
the attempted aggravated burglary charge. That is, the State may charge and convict of
aggravated burglary without showing the defendant criminally damaged property as well.
The two charges are linked only in the sense that the evidence used to prove the criminal
damage charge—the tampering with the telephone box and the prying of the back door—
also provided circumstantial evidence for the attempted aggravated burglary charge
bearing on Hargrove's intent and purpose. This court may consider those circumstances in
evaluating the sufficiency of the evidence on the burglary charge even though the jury
found Hargrove not guilty of criminal damage. The not guilty verdict creates no legal or
practical bar to considering the evidence to the extent it supports the attempted
aggravated burglary.

The State, of course, could have chosen not to charge Hargrove with criminal
damage, and there would have been no jury verdict at all on that offense. Under those
circumstances, the evidence regarding the telephone box and the back door obviously
could have been taken into account in assessing the sufficiency of the State's proof of the
attempted aggravated burglary. As the Powell Court recognized, the interposition of a not
guilty verdict doesn't alter those considerations. 469 U.S. at 67; see Beach, 275 Kan. at
619-20 (quoting Powell, 469 U.S. at 67).

Even if we indulged in an unwarranted assumption that the jury brought back a not
guilty verdict because it was unconvinced beyond a reasonable doubt that Hargrove
tampered with the telephone box and pried the back door—the premise of his argument
on appeal—our approach would be no different. Jurors need not weigh each piece of
evidence and find it true beyond a reasonable doubt to consider it along with the rest of
the evidence. Rather, the jurors may assess what weight or credit to give testimony or
43

physical evidence. Jurors may accord great persuasiveness to consistent, corroborating
testimony from a series of disinterested witnesses or to unrebutted DNA evidence
showing a defendant to have been involved in a crime. By the same token, jurors may
extend only limited value to the testimony of a purported accomplice cutting a deal with
the State. But the jurors need not discount entirely the accomplice testimony because they
are unconvinced it is correct beyond a reasonable doubt. Ultimately, jurors in a criminal
case must be convinced the evidence collectively establishes beyond a reasonable doubt
the elements the State is required to prove for the charged offense. Particular evidence
might be afforded considerable credit in satisfying that standard, while other evidence
could be viewed as less reliable but still indicative of guilt, and some could be rejected
outright as unworthy of belief.

The not guilty verdict on the criminal damage to property charge cannot be treated
as a rejection of the evidence as wholly unreliable or a conclusive determination that
Hargrove did not do those acts. The verdict may have been the product of jury confusion
or of jury lenity toward Hargrove, as Powell and Beach recognize. Maybe the jurors truly
entertained a reasonable doubt that Hargrove ripped open the telephone box and tried to
jimmy the back door. We don't know and can't speculate in the way Hargrove wants us
to. But even if the jurors had a reasonable doubt Hargrove did those acts and found him
not guilty for that reason, they still could consider that evidence as part of the collective
body of evidence on the attempted aggravated burglary charge so long as they deemed it
worthy of some credit. There is no legal inconsistency in affording that evidence some
weight, along with the rest of the circumstances, in deciding to convict Hargrove of
attempted aggravated burglary but finding it insufficient to prove beyond a reasonable
doubt that he damaged the property.

Turning to the sufficiency of the evidence, the trial record, taken most favorably to
the State as the prevailing party, supports the conviction for attempted aggravated
burglary. Identity is not at issue in that Hargrove indisputably went to Geither's front door
and admitted as much to the police, although he denied some of the activity. Nor does
44

Hargrove contest that Geither was in the house at the time. On appeal, Hargrove contends
the evidence fails to show both an overt act taken in commission of burglary and an intent
to commit a theft. As we have noted, Hargrove contends that the tampering with the
telephone box and the prying of the back door cannot be considered for those purposes.
But Powell and Beach reject that argument, since the not guilty verdict may have resulted
from lenity or nullification. If we were to ignore the holdings in those cases and then to
treat that verdict as establishing a reasonable doubt that Hargrove damaged the telephone
box or the back door, we would have to reject those circumstances as overt acts. That's
because an overt act is an element of an attempt—something the State specifically must
prove beyond a reasonable doubt—and not merely evidence to be weighed in support of
one or more elements of the crime. Ultimately, however, Hargrove comes up short
whichever way we look at the evidence.

Tampering with the alarm system or jimmying of the back door would amount to
distinct overt acts in the commission of a burglary. One is a direct step to avoid detection
while carrying out the crime, and the other is a direct step in entering the premises to
commit the crime. The divide between an overt act and mere preparation isn't always well
marked; it often depends upon the facts of the case and the nature of the crime. State v.
Garner, 237 Kan. 227, 238, 699 P.2d 468 (1985) ("no definitive rule as to what
constitutes an overt act for purposes of attempt"; "[e]ach case must depend largely on its
particular facts and the inferences which a jury may reasonably draw"). Here, a jury
reasonably could conclude those actions exceeded mere preparation. See State v. Chism,
243 Kan. 484, 490, 759 P.2d 105 (1988) (jury could find defendant's entry into backyard
overt act in commission of attempted burglary); State v. Cory, 211 Kan. 528, 531, 506
P.2d 1115 (1973) (attempted entrance sufficient to support attempted burglary).

Apart from that conduct, a jury could reasonably find Hargrove engaged in an
overt act when he rang the doorbell about 10 times, went to his car, and returned to ring
the bell again and to try the door handle. Those efforts could be logically and readily
construed as a means to determine if the house were unoccupied, making it a suitable
45

target for a break-in and theft. And Hargrove might well have tried the front door to see if
it were unlocked so he could avoid forcing his way in after disabling the alarm. Again,
that activity goes well beyond mere preparation, such as placing the gloves, screwdriver,
or other burglary tools in the car.

Hargrove attempts to defuse that evidence based on Geither's testimony that he
"thought" he made eye contact with Hargrove when he looked out the upstairs front
window. On appeal, Hargrove contends the conduct attributed to him in attempting to
break into the house knowing it to be occupied would have been nonsensical. And, he
says, the return to the front door would have been consistent with an effort to contact the
occupant to get directions. But the argument requires this court to reweigh the evidence
in a manner contrary to the verdict—something this court cannot do. See Raskie, 293
Kan. at 919-20. The jury certainly could have discounted Geither's surmise that he and
Hargrove made eye contact. The jury also had reason to reject the explanation Hargrove
offered the police about trying to get directions. He never asked the uniformed officers on
the scene about directions, and he suggested he had been at the house only a couple of
minutes when the actual time was considerably longer—enough of a variance that the
jury could conclude the statement amounted to a prevarication and not just a mistake.

In short, a reasonable jury could find Hargrove took one or more overt acts toward
the commission of a burglary.

Hargrove also argues the evidence fails to show he had an intent to commit a theft
when he approached the house. Gauging intent is often an imprecise task. Jurors must
determine what is going on inside a person's head, and criminals routinely disavow any
bad purpose. Jurors are left to survey the circumstances to discern a defendant's actual
intent. So it is in ferreting out whether someone has the requisite intent to commit a theft,
thereby supporting a conviction for burglary, aggravated burglary, or, in this case, an
attempt. See State v. Harper, 235 Kan. 825, Syl. ¶ 2, 685 P.2d 850 (1984); State v.
Wilson, 45 Kan. App. 2d 282, 288, 246 P.3d 1008, rev. denied 292 Kan. 969 (2011). The
46

jurors may consider "the totality of the surrounding circumstances," in a burglary
prosecution, including "the manner of the entry, the time of day, the character and
contents of the building, the person's actions after entry . . ., and the intruder's
explanation, if he or she decides to give one." Harper, 235 Kan. 825, Syl. ¶ 2.

In Harper, the court found sufficient evidence to support an intent to commit a
theft where the defendant broke into a school in the middle of the night, headed toward
the secretary's office where valuable property was kept, attempted to enter that inner
office, and then fled as police arrived. 235 Kan. at 832-33. After he was caught, the
defendant offered a story that failed to reasonably explain his presence in the school or to
dispel guilt.

The circumstances here are comparable, although Hargrove was thwarted before
he actually entered the house. Hargrove was on a secluded residential street at midday,
when most homes likely would be empty. His conduct in ringing the doorbell repeatedly
for two extended periods squares with making sure the house was, in fact, unoccupied.
The jury could consider the evidence that the alarm system had been tampered with and
the back door jimmied—again, conduct consistent with an intent to enter the house
without being detected. Hargrove's possession of a screwdriver and cotton gloves falls in
line with housebreaking. Finally, as we have noted, Hargrove's explanation of his purpose
had aspects that didn't square with his conduct and, thus, suggested a lack of candor.

From those circumstances, the jurors could have reasonably concluded Hargrove
meant to enter Geither's home believing it to be empty and to do so for a nefarious
purpose. Consistent with Harper, those jurors fairly could have inferred Hargrove
intended to steal valuable (and portable) property from the house. Nothing suggested
some other bad intent or purpose. For example, Hargrove did not have the tools of an
arsonist—an accelerant and rags—or a vandal—spray paint and a sledgehammer.
Reasoned inferences drawn from circumstantial evidence will support a jury verdict
requiring proof of criminal intent, including commission of a theft. See Harper, 235 Kan.
47

825, Syl. ¶ 2 (The criminal intent necessary to support a burglary conviction "is rarely
susceptible of direct proof; it is usually inferred from the surrounding facts and
circumstances.). Sufficient evidence supported the verdict convicting Hargrove of
attempted aggravated burglary.

Affirmed.