State v. King

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,478

STATE OF KANSAS,
Appellee,

v.

KAMERON KING,
Appellant.


SYLLABUS BY THE COURT


1.
K.S.A. 22-2401(d) allows a law enforcement officer to arrest a person when a
crime has been or is being committed by the person in the officer's view. The plain
language of the statute does not require that the arrest occur at any particular time.

2.
Under the facts of this case, the screened-in porch was not part of the home or its
curtilage; therefore, a warrantless arrest made on the porch or after the defendant stepped
off the porch at a police officer's request was constitutional.

3.
It is error to exclude relevant, admissible, and noncumulative evidence that is an
integral part of the defendant's theory of defense.
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4.
Evidence of bias, interest, or improper motives of a witness is always relevant in
order to place the witness' testimony in proper perspective. A party should have wide
latitude in establishing partiality, bias, motive, or interest of a witness.

5.
When a defendant's prior convictions are not included in the complaint or proved
to a jury beyond a reasonable doubt, the use of his or her criminal history score in
sentencing does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2358, 147
L. Ed. 2d 435 (2000).

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 14, 2009.
Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed March 9, 2012.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part.
Judgment of the district court is affirmed in part, reversed in part, and remanded.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Jennifer S. Tatum, assistant district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: After a jury trial, Kameron King was convicted of possession of
cocaine and failure to display a drug tax stamp. He was sentenced to 34 months'
imprisonment. The Court of Appeals affirmed. This court granted review of (1) whether
the arrest was lawful, (2) whether the trial court's exclusion of three witnesses prevented
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King from presenting his theory of defense, and (3) whether his sentence violated
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

FACTUAL BACKGROUND

On June 2, 2005, Officer Stanturf attempted to stop a vehicle driving without its
headlights on, but when the vehicle stopped the occupants fled on foot. From previous
encounters, Stanturf recognized the driver as Kameron King. Stanturf was unable to
apprehend King that day, but he issued tickets for driving without headlights, driving
while suspended, and obstructing justice for running from the scene of the stop. The
tickets included a misdemeanor summons for King that Stanturf kept on the clipboard in
his patrol car, expecting he would come into contact with King again.

On June 17, 2005, Stanturf, along with other officers, responded to a disturbance
call at a private residence. The officers gave varied testimony on the location of the
individuals involved in the disturbance, but generally placed King, Sean Valasquez, and
Amanda Velasquez in the yard or on a screened-in porch in the front of the house.
Stanturf ordered King to come to the doorway of the porch, and King complied. Stanturf
arrested King for the misdemeanors committed on June 2, 2005. When Stanturf searched
King before placing him in the patrol car, the officer found a baggie of cocaine and a
large sum of cash in his pants pocket. Over $700 in cash and the baggie of cocaine were
admitted as evidence at trial.

King and two witnesses on his behalf gave a markedly different version of the
night's events. All three testified that six or seven adults were peacefully enjoying the
evening on the porch after a family-friendly barbeque while their children played inside
the house. The adults had watched several police vehicles pass the house and assumed the
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police were searching for someone. Seemingly without explanation, several officers burst
onto the porch and arrested King.

Ryan Hudnall, a long-time friend and current employer of King, testified that he
had paid King $2,400 in cash earlier that day for a 3-week siding project that he had just
finished. Hudnall testified that the arresting officer pulled something from his own pocket
before searching King, with the suggestion that Stanturf planted the cocaine on King
during the search. Both Hudnall and Shana Howard testified that Stanturf said something
to the effect that King would "be better off with a bullet in [his] head."

King testified that Hudnall paid him $2,400 before his arrest, which he put in his
pants pocket. King described a family barbeque that included at least six other adults and
their children. The adults were sitting on the screened-in porch, drinking beer and
smoking. They saw the police cruising the neighborhood and wondered what was going
on. According to King, the police ran up on the porch, pushed him against the house, and
arrested him. King testified that Stanturf removed $2,400 from his pocket and placed it
on the hood of the police car. King said that Stanturf also produced a baggie of cocaine
and put it on the hood of the police car. King denied that the cocaine was his, both at the
time of his arrest and in his trial testimony.

King proffered three additional witnesses to testify to the events before and after
his arrest on June 17, 2005. These witnesses supported King's theory that the south patrol
division was, for lack of a better term, out to get him. These witnesses would have
testified to a pattern of harassment and evidence fabrication against King. The trial court
did not permit the three witnesses to testify. The specifics of their proffered testimony are
discussed more thoroughly below.

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King was charged with possession of cocaine and possession of a controlled
substance without a tax stamp. A jury found King guilty on both counts. King was
sentenced to 34 months' imprisonment for possession of cocaine and 6 months'
imprisonment for possession of a controlled substance without a tax stamp, to run
concurrent with the first count. In a divided opinion, the Court of Appeals affirmed. State
v. King, No. 99,478, 2009 WL 2499243 (Kan. App. 2009) (unpublished opinion)

LAWFUL ARREST

Stanturf allegedly found the cocaine that provided the basis for the charges in this
case in a search incident to King's arrest. King argues that (1) the officer had no authority
to arrest him for a misdemeanor committed 2 weeks before, and (2) the officer had no
authority to arrest him because King was in an enclosed porch that was part of his home.

Standard of Review

"On a motion to suppress evidence, this court generally reviews the factual
findings underlying the district court's suppression decision by a substantial competent
evidence standard and the ultimate legal conclusion drawn from those factual findings by
a de novo standard. The court does not reweigh the evidence. When the parties do not
dispute the material facts, however, the suppression question is solely one of law." State
v. Coleman, 292 Kan. 813, Syl. ¶ 3, 257 P.3d 320 (2011).

This case also requires the court to interpret K.S.A. 22-2401. Statutory
interpretation is a question of law, and this court's review is unlimited. If the statute is
plain and unambiguous, we rely on the plain langugage of the statute. State v. McDaniel,
292 Kan. 443, 444-45, 254 P.3d 534 (2011).



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Authority to Arrest for a Misdemeanor

King argues that his arrest was not proper under K.S.A. 22-2401(d) because
Stanturf based the arrest on a misdemeanor that occurred 2 weeks prior to the arrest.
K.S.A. 22-2401(d) allows a law enforcement officer to arrest a person when "[a]ny crime,
except a traffic infraction or a cigarette or tobacco infraction, has been or is being
committed by the person in the officer's view." King argues that because Stanturf did not
arrest him at the time the officer saw King commit the misdemeanor, the officer only had
probable cause to believe that King had committed the misdemeanor. Therefore, the
arrest would only be proper under K.S.A. 22-2401(c)(2) if Stanturf also had probable
cause to believe that "(A) [t]he person will not be apprehended or evidence of the crime
will be irretrievably lost unless the person is immediately arrested; (B) the person may
cause injury to self or others or damage to property unless immediately arrested; or (C)
the person has intentionally inflicted bodily harm to another person." K.S.A. 22-
2401(c)(2).

The trial court's memorandum decision states:

"It is clear to this Court that the officer does have the authority to make a valid
arrest. K.S.A. 22-2401, makes it clear that a police officer has probable cause for an
arrest on a misdemeanor if he observes the defendant commit the misdemeanor in his
presence. This is clearly the case in this situation."

The Court of Appeals concluded that the trial court erroneously incorporated the
K.S.A. 22-2401(c) probable cause requirement into K.S.A. 22-2401(d). King, 2009 WL
2499243, at *2. But the Court of Appeals held that the trial court was right for the wrong
reason in that Stanturf lawfully arrested King on June 17, 2005, for three misdemeanors
he saw King commit on June 2, 2005. This conclusion follows the plain language of
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K.S.A. 22-2401(d), which does not place any time requirement on the time of the arrest
relative to the time the officer witnesses the crime.

We agree with this reasoning. K.S.A. 22-2401(d) allows a law enforcement officer
to arrest a person when a crime "has been or is being committed by the person in the
officer's view." The plain language of the statute does not require that the arrest occur at
any particular time.

Authority to Arrest on Screened-in Porch

King also argues that Stanturf violated his rights under the Fourth Amendment to
the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by
arresting King in his home or its curtilage absent exigent circumstances. King contends
that because a screened-in porch is part of the dwelling for the purposes of the burglary
statute, such a porch is an extension of the home.

Recognizing that warrantless arrests in the home are generally unconstitutional,
we have held that a warrantless arrest is constitutional when the defendant steps outside
the home, even at the request of police officers. State v. Riddle, 246 Kan. 277, 281, 788
P.2d 266 (1990). In State v. Orr, No. 96,790, 2008 WL 940778, at *3 (Kan. App. 2008)
(unpublished opinion), the Court of Appeals extended Riddle to a glassed-in porch. In
Orr, the court found that a glassed-in front porch was not a part of the house for Fourth
Amendment purposes based on the following factors:

"(1) [T]he door to the porch was a storm door mostly made of glass and without a solid
door behind it; (2) the porch protruded from the house and had windows completely
along the two free-standing sides; (3) the furniture inside the porch—which included
plastic chairs commonly used as lawn furniture—was consistent with the area being a
porch; (4) the defendant testified that she does not allow smoking in her home, but that
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she and her roommate commonly smoke on the porch; (5) anyone sitting on the porch
would be visible from mid-torso up, and anyone standing on the porch would be visible
from the waist up; and (6) to the right of the inner door was a porch light fixture." Orr,
2008 WL 940778, at *3.

In Orr, the Court of Appeals reviewed the trial court's findings and concluded that the
defendant had no reasonable expectation of privacy in the glassed-in porch because the
area was simply an enclosed porch that was used as the entryway to the front door of the
home. Orr, 2008 WL 940778, at *4.

The United States Supreme Court outlined four factors that must be considered to
determine the extent of a home's curtilage:

"the proximity of the area claimed to be curtilage to the home, whether the area is
included within an enclosure surrounding the home, the nature of the uses to which the
area is put, and the steps taken by the resident to protect the area from observation by
people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed.
2d 326 (1987).

The trial court considered the porch area in this case, finding that (1) the porch
area was only partially screened, (2) the door to the porch area was not locked, (3) a
person approaching the house would go onto the screened-in porch to knock on the door
to the main part of the house, (4) people on the porch were clearly visible to anyone in
the front yard, and (5) it was possible to hear, see, and talk with anyone on the porch
from the front yard. The trial court described the photographs of the porch and house to
make these findings. As the Court of Appeals held, the record supports these factual
findings.

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The trial court concluded that there was no reasonable expectation of privacy in
the porch; therefore, it was appropriate for the officer to ask King to step outside the
porch and to arrest him. We agree with the analysis by the trial court and the Court of
Appeals. The area in question was a semi-enclosed, screened-in front porch that allowed
access to the front door. Although enclosed, it was not private, not a part of the home or
its curtilage. Stanturf therefore had the authority to arrest King on the porch or to ask him
to step off the porch before arresting him.

COMPLETE DEFENSE

Before King presented his defense, the State questioned the relevance of witnesses
who were not present on June 17, 2005. King's attorney ultimately made a proffer of the
evidence three witnesses would provide, and the trial court excluded this evidence. King
claims this exclusion violated his right to present his defense and his right to a fair trial.

"Under the state and federal Constitutions, a defendant is entitled to present his
or her theory of defense. This right is subject to statutory rules and case law
interpretations of the rules of evidence and procedure. A defendant's fundamental right to
a fair trial is violated only when the trial court excludes relevant, admissible, and
noncumulative evidence that is an integral part of the defense theory." State v. Lawrence,
281 Kan. 1081, Syl. ¶ 1, 135 P.3d 1211 (2006).

We review whether the trial court excluded relevant, admissible, and
noncumulative evidence that was an integral part of the defendant's theory of defense. If
it was error for the trial court to exclude this evidence, we must also consider whether
this error was harmless. See K.S.A. 60-261.



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Standard of Review

"We have held that a defendant is entitled to present his or her defense, and a
defendant's fundamental right to a fair trial is violated if evidence that is an integral part
of that theory is excluded. [Citation omitted.] However, that right is not unlimited. '[T]he
right to present a defense is subject to statutory rules and case law interpretation of the
rules of evidence and procedure.' [Citation omitted.]" State v. Houston, 289 Kan. 252,
261, 213 P.3d 728 (2009).

In Houston, the court was reviewing whether evidence of the victim's prior violent
acts was relevant to the defendant's state of mind as it related to his claim of self-defense.
Discussing the defendant's claim that the Court of Appeals erroneously applied an abuse
of discretion standard rather than a de novo standard of review, we concluded:

"However, to establish relevance, i.e., probativity, there must be some logical connection
between the asserted facts and the inference or result they are intended to establish.
[Citation omitted.] In Reid, we explained that the definition of 'relevance' as described in
K.S.A. 60-401(b) ('"Relevant evidence" means evidence having any tendency in reason to
prove any material fact.'), like Federal Rule of Evidence 401, contains both a probative
element and a materiality element. There we held that we review trial court
determinations of the probativity prong of relevance for an abuse of discretion, and
determinations of materiality are reviewed de novo. [Citation omitted.] We therefore
expressly reject Houston's general assertion that relevance is reviewed de novo."
Houston, 289 Kan. at 261-62.

In Mitchell v. Gibson, 262 F.3d 1036 (10th Cir. 2001), the Tenth Circuit Court of
Appeals provided the following test for whether excluded testimony denied a defendant
their constitutional right to present their defense:

"'In order to declare a denial of [fundamental fairness] we must find that the absence of
that fairness fatally infected the trial; the acts complained of must be of such quality as
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necessarily prevents a fair trial. It is the materiality of the excluded evidence to the
presentation of the defense that determines whether a petitioner has been deprived of a
fundamentally fair trial. Evidence is material if its suppression might have affected the
trial's outcome. In other words, material evidence is that which is exculpatory—evidence
that if admitted would create reasonable doubt that did not exist without the evidence.'"
Gibson, 262 F.3d at 1054 (quoting Richmond v. Embry, 122 F.3d 866, 872 [10th Cir.
1997]).

Rebecca Vernon

King's counsel made the following proffer regarding Rebecca Vernon's testimony:

"Because of the recent case law, I'm a little leery of making proffers. But I think that
I can state with confidence that Rebecca Vernon, V-e-r-n-o-n, will testify that Stanturf
has made a habit of following Kameron, of parking in front of his house, of following
him down the street while he's walking, just general harassment.

"And that that has occurred since the arrest in this case."

We agree with the Court of Appeals that this evidence was relevant to the bias and
interest of Stanturf. As the Court of Appeals stated: "Evidence of bias, interest, or
improper motives of a witness is always relevant in order to place the witness' testimony
in proper perspective. A party should have wide latitude in establishing partiality, bias,
motive, or interest of a witness." King, 2009 WL 2499243, at *5. This evidence was
specifically relevant to King's defense because it provides a reason or motive for Stanturf
to plant evidence to frame King for this crime.

To the extent that Stanturf's conduct in stalking and harassing King could be
viewed as a statement, the officer was available for cross-examination, eliminating any
hearsay problems with this testimony. See K.S.A. 60-460(a). Although King did testify
about some instances of Stanturf's stalking and harassment, Vernon could have testified
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about different instances. This evidence was not unduly repetitious or cumulative. Rules
of evidence and procedure do not bar this testimony.

Further, this testimony was an integral part of King's defense. It is not enough that
King was allowed to identify his theory of defense, i.e., to tell the jury the drugs were
planted by Stanturf during the arrest, without explaining why Stanturf might act with
such disregard for the law and his duty as a law enforcement officer. Stanturf's motive
and his alleged grudge against King were an essential part of King's defense.

Because this was relevant, admissible, and noncumulative evidence that was
integral to King's defense, it was error to exclude this evidence.

Ivan King

King's counsel proffered the following with regard to the testimony of Ivan King:

"Ivan King would testify that on a recent occasion three members of the south patrol
division came up to his house in a pickup truck, off duty, to come to his party that he was
giving and ask about noise with their pistols drawn.

"That he was eventually arrested, was taken, not to the jail here, but to the south
patrol office where the arresting officer shined a flashlight on his face while members of
south patrol came out. And it was announced, 'This is Ivan King, he's the brother of
Kameron King, you know, that POS that's given us so much trouble.'"

The Court of Appeals majority rejected King's argument that the attitude of the
south patrol division was relevant to the actions of Stanturf and the other four officers
present during King's arrest on June 17, 2005. The majority found that Ivan King's
testimony, even if accepted as true, was of minimal probative value and may have been
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more damaging to King than helpful. King, 2009 WL 2499243, at *6. We disagree and
come to the same conclusion as Judge Leben in his well-reasoned dissent. Evidence that
the south patrol division had a vendetta against King or a negative attitude toward him
provides, at least by inference, a motive for Stanturf to plant drugs on King during his
arrest. This evidence was relevant.

The trial court ruled this was inadmissible hearsay unless the officers involved
were available for cross-examination. Again, we disagree. A statement that is not offered
to prove the truth of the matter asserted is not inadmissible hearsay. Boldridge v. State,
289 Kan. 618, 635, 215 P.3d 585 (2009). This testimony was not offered to prove that
King was a "POS that's given [the south patrol division] so much trouble," but to show
that an officer with the south patrol division had made the statement. As such, this
evidence was not inadmissible hearsay. Nor was this evidence cumulative.

This evidence was also an integral part of King's defense. To support his theory
that Stanturf planted drugs on him, King would have to show that Stanturf had some
motive to do so. The jury might question why other officers present on the night of King's
arrest did not object to Stanturf's conduct. The making of a statement reflecting a
pervasive antagonistic attitude toward King in the south patrol division would explain
such inaction.

Because this was relevant, admissible, and noncumulative evidence that was
integral to King's defense, it was error to exclude this evidence.

Claudia King

King's counsel proffered the following with regard to the testimony of Claudia
King:
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"Claudia King, I think, given the ruling that you've already made, she would just
proffer that there was an incident where Kameron was accused and eventually convicted
of car theft.

"The officers involved were Jeff Hamilton, who you probably have heard of or know
of, and Jason Sutton. And they came into her house, said they thought they had seen
Kameron driving a stolen car. They knew it was either him or Curtis Hall. They couldn't
be sure.

"This was like 11:30 at night, no warrant, no nothing, just came into the house. And
then went into court and testified they were sure it was Kameron King. Then Jeff
Hamilton called after all was said and done, and [said], 'Sorry, we had to lie in court.'
And that would be the evidence."

The trial court and Court of Appeals majority rejected this evidence because it
would have informed the jury of King's prior, unrelated car theft conviction. In presenting
his defense to the jury, a defendant may open the door to otherwise inadmissible evidence
that is prejudicial to his case. For example, if a defendant introduces evidence solely for
the purpose of supporting his or her credibility, the defendant may be cross-examined
about prior convictions involving dishonesty or false statements. State v. Johnson, 21
Kan. App. 2d 576, 579, 907 P.2d 144, rev. denied 258 Kan. 861 (1995) (citing State v.
DeLespine, 201 Kan. 348, 350, 440 P.2d 572 (1968)). Simply telling his version of
events, a defendant may admit to other crimes or conduct a jury might find objectionable.
The negative implications of a defendant's theory of defense are things that the defendant,
with counsel, should consider when deciding how to pursue his or her defense. See State
v. Betts, 272 Kan. 369, 387-91, 33 P.3d 575 (2001), overruled on other grounds by State
v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2006) (trial counsel's strategic decisions on
which witnesses to call to present defendant's theory of defense may not establish
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ineffective assistance of counsel). The potential prejudice of this evidence, when offered
by King, was not enough to rule the evidence was inadmissible.

The officer's statement in Claudia King's testimony would have been offered to
prove that the officer admitted to lying in court in another case in order to obtain a
conviction. But an admission of perjury is a statement against interest that is admissible
under K.S.A. 60-460(j). This evidence was not inadmissible hearsay.

Like the testimony of Ivan King, this evidence was relevant to show that the
attitude of officers in the south patrol division would have allowed and even encouraged
Stanturf to plant drugs on King. Likewise, the evidence was integral to King's defense.
And this evidence was not cumulative. Because this was relevant, admissible, and
noncumulative evidence that was integral to King's defense, it was error to exclude this
evidence.

Harmless Error

Because it was error to exclude the testimony of these three witnesses, we must
consider whether that error was harmless. Our decision in State v. Ward, 292 Kan. 541,
556-65, 256 P.3d 801 (2011), synthesized and clarified our case law on the definition and
application of the harmless error standard applied to claims of constitutional error,
concluding:

"[B]efore a Kansas court can declare an error harmless it must determine the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.
The degree of certainty by which the court must be persuaded that the error did not affect
the outcome of the trial will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
16



there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." Ward, 292 Kan. at 565.

The State, as the party benefitting from the error, has the burden of proving the
error was harmless.

"'A constitutional error may be declared harmless where the [party benefitting from the
error] proves beyond a reasonable doubt that the error complained of did not [affect
substantial rights, meaning it did not] contribute to the verdict obtained.' Kleypas, 272
Kan. at 1084 (citing Chapman, 386 U.S. at 24)." Ward, 292 Kan. at 568-69.

The evidence in this case comes purely from witness testimony. Stanturf and
another officer testified that the cocaine came from King's pants pocket. King and
Hudnall testified that Stanturf planted the cocaine found in this case. No physical
evidence linked the bag of cocaine to King and there was no video of the arrest or
subsequent search. Stanturf testified that he had no strong personal feelings against King,
other than some frustration from the incident on June 2, 2005, when King fled the scene.
King testified that Stanturf harassed him, pulled him over frequently, and had told King
of his personal dislike of King. Stanturf testified that he knew of no ongoing vendetta
between King and the officers of the south patrol division. But King was not allowed to
present evidence of the south patrol division's alleged hostile attitude toward him.

The prosecutor's closing argument seized upon the absence of this evidence and
ridiculed King's defense, saying:

"It is not reasonable to believe that Officer Stanturf and the entire Kansas City,
Kansas, Police Department have it in for Kameron King, that they're going to risk their
17



jobs, and judges and cops and forensic chemists are going to corroborate him. I think you
all know that Wyandotte County has more problems than that."

The prosecutor's closing argument highlights the fact that King was allowed to
present the "what" of his defense―i.e., the drugs had been planted, but he was not
allowed to present the "why" of his defense―i.e., the bias of Officer Stanturf and the
south patrol division. Although King was allowed to present his defense that the drugs
were planted through his own testimony and that of one other witness, the trial court
denied King the opportunity to present relevant, admissible, and noncumulative evidence
that was integral to his defense. Evidence that Stanturf continued to harass King after the
arrest supports King's theory that Stanturf had a grudge against him that caused the
officer to plant drugs to frame him for this crime. Evidence that officers in the south
patrol division made disparaging comments about King to his family and perjured
themselves to obtain a conviction further supports King's theory of defense.

As Judge Leben pointed out in his dissent, it may well be that a jury would give
little weight to the proffered testimony, but it is not our job on appeal to determine its
believability. The evidence offered was relevant, material, and not subject to any
sustainable hearsay objections. The State, as the party benefitting from the error, has the
burden of proving that the exclusion of this evidence was harmless. Ward, 292 Kan. at
568-69. The State, therefore, needed to prove "beyond a reasonable doubt that there was
no impact on the trial's outcome, i.e., there is no reasonable possibility that the error
contributed to the verdict." Ward, 292 Kan. at 565. The State failed to meet its burden in
this case. The exclusion of this evidence prevented King from presenting a complete
defense. There is a reasonable possibility that the exclusion of this evidence contributed
to the verdict. Because this evidence was integral to King's defense theory, we are not
persuaded beyond a reasonable doubt that the error did not impact the outcome of the
trial, so we must reverse his convictions and remand for a new trial.
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SENTENCING

King argues that because his prior convictions were not included in the complaint
or proved to a jury beyond a reasonable doubt, the use of his criminal history score in
sentencing violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000). King acknowledges that this court has previously decided this issue, but
seeks to preserve it for federal review. See State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d
781 (2002).

Judgment of the Court of Appeals affirming the district court is affirmed in part
and reversed in part. Judgment of the district court is affirmed in part, reversed in part,
and remanded for a new trial.