State v. Knight (MODIFIED)

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No. 100,167

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL LORENZO KNIGHT, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
An appellate court reviews the trial court's decision on a motion to suppress
evidence using a bifurcated standard. Without reweighing the evidence, the trial court's
findings are reviewed to determine whether they are supported by substantial competent
evidence. Then the ultimate legal conclusion regarding the suppression of evidence is
reviewed using a de novo standard.

2.
When the material facts to a trial court's decision on a motion to suppress evidence
are not in dispute, the question of whether to suppress is a question of law over which an
appellate court has unlimited review.

3.
The State bears the burden of proof for a suppression motion and must prove to
the trial court the lawfulness of the search and seizure.

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4.
Interpretation of a statute is a question of law over which this court has unlimited
review.

5.
When a statute is plain and unambiguous, we do not speculate as to the legislative
intent behind it and will not read the statute to add something not readily found in it. A
court need not resort to statutory construction. It is only if the statute's language or text is
unclear or ambiguous that we move to the next analytical step, applying canons of
construction or relying on legislative history construing the statute to effect the
legislature's intent.

6.
Errors plainly clerical in character, mere inadvertences of terminology, and other
similar inaccuracies or deficiencies will be disregarded or corrected where the intention
of the legislature is plain and unmistakable. But a court cannot delete vital provisions or
supply vital omissions in a statute. No matter what the legislature may have really
intended to do, if it did not in fact do it, under any reasonable interpretation of the
language used, the defect is one which the legislature alone can correct.

7.
As a general rule, criminal statutes must be strictly construed in favor of the
accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the
accused. This rule of strict construction is nevertheless subordinate to the rule that
judicial interpretation must be reasonable and sensible to effect legislative design and
intent.

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8.
According to the rule of lenity, when there is ambiguity in the statute's meaning,
the ambiguity should be narrowly construed in favor of the criminal defendant.

9.
Issues not raised before the trial court cannot be raised on appeal. Furthermore,
constitutional grounds for reversal asserted for the first time on appeal are also not
properly before an appellate court for review. Nevertheless, there are several exceptions
to the general rule that a new legal theory may not be asserted for the first time on appeal,
including the following: (1) the newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case; (2) the
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; and (3) the judgment of the trial court may be upheld on appeal
despite its relying on the wrong ground or its assigning a wrong reason for its decision.

10.
The constitutionality of a statute presents a question of law, which we review de
novo.

11.
The Second Amendment to the United States Constitution is incorporated in the
Due Process Clause of the 14th Amendment to the United States Constitution and thereby
enforceable against the states.

Appeal from Johnson District Court; JOHN ANDERSON, III, judge, and ADRIAN GILBY, judge pro
tem. Original opinion filed November 6, 2009. Modified opinion filed October 8, 2010. Affirmed in part,
reversed in part, vacated in part, and remanded with directions.

Carl Folsom, III, Kansas Appellate Defender Office, for appellant.

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Steven J. Obermeier, assistant district attorney, Sara Pfeiffer, legal intern, Stephen M. Howe,
district attorney, and Steve Six, attorney general, for appellee.

Before GREENE, P. J., GREEN and STANDRIDGE, JJ.

GREEN, J.: On September 10, 2010, our Supreme Court granted appellant's petition
for review and summarily remanded this appeal to the Court of Appeals for consideration
of the United States Supreme Court's recent decision in McDonald v. Chicago, 561 U.S.
__, 177 L. Ed. 2d 894, 130 S. Ct. 3020 (2010), which found that the Second Amendment
right to keep and bear arms is fully applicable to the states by virtue of the 14th
Amendment to the United States Constitution.

In our original opinion State v. Knight, 42 Kan. App. 2d 893, 218 P.3d 1177
(2009), on page 894, Syllabus ¶ 11, stated: "The Second Amendment to the United States
Constitution is not incorporated to the Due Process Clause of the 14th Amendment to the
United States Constitution and thereby enforceable against the states."

The previously quoted syllabus is modified to read: "The Second Amendment to
the United States Constitution is incorporated in the Due Process Clause of the 14th
Amendment to the United States Constitution and thereby enforceable against the states."

We delete the following paragraph on page 910 of our original opinion:

"Indeed, the Heller Court states that Presser and Miller 'reaffirmed that the
Second Amendment applies only to the Federal Government.' 128 S. Ct. at 2813 n.23. As
a result, until the Supreme Court overrules Presser and holds to the contrary, lower courts
remain bound to follow the law that the Second Amendment has no application to the
states. Because the Second Amendment is not incorporated in the Due Process Clause
and thereby enforceable against the states, Knight cannot maintain that K.S.A. 2006
Supp. 21-4301(a)(4) infringes on any Second Amendment rights."

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We replace the previously deleted paragraph of our original opinion with the
following paragraph:

"Nevertheless, the United States Supreme Court recently held that the right to
'keep and bear arms' embodied in the Second Amendment applies not only to the federal
government, but also to the individual states. See McDonald v. Chicago, 561 U.S. __,
130 S. Ct. 3020 (2010). A four-justice plurality agreed that the Due Process Clause of the
14th Amendment to the United States Constitution 'incorporates' the Second
Amendment's right to keep and bear arms, which was recognized in District of Columbia
v. Heller, 554 U.S. __, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008)."

We delete the following paragraph on page 910 of our original opinion:

"Nonetheless, Knight contends that even if the court finds that the Second
Amendment does not apply to the states, § 4 of the Kansas Constitution Bill of Rights
offers the same protection as the Second Amendment. Kansas case law, however, clearly
proves that the regulations against carrying concealed weapons are not in violation of § 4
of the Kansas Constitution Bill of Rights. See Salina v. Blaksley, 72 Kan. 230, 83 Pac.
619 (1950) (ruling that § 4 of the Kansas Constitution does not confer an individual right
to bear arms); State v. Doile, 7 Kan. App. 2d 722, 725, 648 P.2d 262, rev. denied 232
Kan. 876 (1982) (noting a 'legislative interest in controlling concealed weapons'). As a
result, Knight's argument fails."

We adhere to the original opinion in all other respects.

Michael Lorenzo Knight, Jr., appeals his convictions after a bench trial for
criminal possession of a firearm and carrying a concealed firearm. On appeal, Knight
contends that the trial court improperly denied his motion to suppress evidence arising
from a car stop. We disagree and affirm. Knight also asserts that his conviction for
criminal possession of a firearm is inappropriate, because the statute, K.S.A. 21-
4204(a)(4)(A), under which he was convicted does not apply to his prior felony for an
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attempt crime. We agree. Accordingly, we reverse and remand with directions to dismiss
this conviction. Knight further maintains that his conviction for carrying a concealed
firearm violates his constitutional right to bear arms. We disagree and affirm. Finally,
Knight contends that the trial court erred in ordering him to reimburse the Board of
Indigents' Defense Services for attorney fees without first considering his ability to pay
the fees and determining the financial burden that payment of these fees would impose on
him. We agree. Accordingly, we vacate the trial court's imposition of attorney fees
against Knight and remand for further consideration of this matter.

In October 2007, Knight was charged with misdemeanor carrying of a firearm in
violation of K.S.A. 21-4201 and felony possession of a firearm in violation of K.S.A. 21-
4204(a)(4). The felony possession of a firearm charge was based on Knight's prior
conviction of attempted possession of cocaine.

Before trial, Knight moved to suppress evidence seized from the traffic stop.
During the hearing on the motion, Kansas Highway Patrol Trooper Davon Brame
testified that at approximately 11:24 p.m. on a summer night, he saw Knight driving a
maroon Chevy Monte Carlo southbound on I-35 in Johnson County, Kansas. Brame
noticed that Knight was unable to keep his car within its proper lane of travel. The car
crossed approximately 3 feet over the line separating the left lane of the highway from
the shoulder. While following him, Brame also witnessed Knight weave within his proper
lane of travel two or three times. Additionally, Knight crossed approximately 1 foot over
the dotted line on the right side of the lane. After following Knight for approximately 1/2
mile, Brame initiated a traffic stop based upon Knight's inability to maintain a single lane
of travel. Brame also testified that, as he walked up to the stopped car, he thought Knight
was intoxicated.

At the conclusion of the hearing, the trial court denied Knight's motion to
suppress. The court found that, independent of Brame's suspicion that Knight was driving
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while intoxicated, Knight had committed actual traffic infractions sufficient to justify
Brame's stop. After Knight's motion to suppress was denied, he moved the trial court to
reconsider its decision based on this court's recent holding in State v. Ross, 37 Kan. App.
2d 126, 149 P.2d 876, rev. denied 284 Kan. 950 (2007).

At the hearing on the motion to reconsider, Brame was again called to testify.
Brame's testimony was substantially similar to the testimony he gave at the suppression
hearing, with a few exceptions. Brame noted that there were no parked cars on the
shoulder when Knight crossed onto it and that the shoulder was paved. Brame further
stated that there were no cars in the lane to the right of Knight when he crossed over the
dotted line on the right side of the left lane. He also characterized the traffic flow as
"light" as he followed Knight. Brame again acknowledged, as he had in his prior
suppression hearing testimony, that his justification for stopping Knight was because
Knight had failed to maintain a single lane of travel.

When questioned about his in-car video camera, Brame stated that he had not
activated it until after he initially noticed Knight was unable to maintain a single lane of
travel. During the hearing, the video tape of Knight's alleged infractions was shown.
After viewing the tape, Brame acknowledged that Knight's initial failure to maintain a
single lane of travel, when he drove over the left solid line on to the shoulder from the
left lane, was not recorded on the video tape. Brame stated that he had not turned on the
video camera until after that alleged infraction had occurred.

After viewing the video tape in court, Brame changed his testimony slightly.
Brame acknowledged that although Knight had not stayed in the left lane, Knight had
used his turn signal and had moved into the center lane. After he entered the center lane,
Knight crossed the left dotted line once. The tires of Knight's car also touched the dotted
line on the right side of the center lane. Brame considered this to be a failure to maintain
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a single lane of travel. Overall, Brame saw Knight drive over the left or right lane
markers five times.

During this reconsideration hearing, Brame stated that he suspected Knight "was
either intoxicated or a sleepy driver."

At the conclusion of the hearing, the trial court denied the motion to reconsider.
The court distinguished Ross from the facts in this case, concluding that Ross did not
apply because Trooper Brame testified that he stopped Knight's car to determine if
Knight was intoxicated. This fact was absent in Ross.

At the bench trial, both parties agreed to a set of stipulated facts. Among the
stipulated facts were the following:

"1. On August 12, 2006 Trooper Brame viewed a Maroon Chevy Monte Carlo
driving on I-35 at around 11:24 p.m. in Johnson County, Kansas.
"2. Trooper Brame testified that he saw the vehicle operated by the Defendant
cross the solid line on the left side of I-35 and weave within its own lane.
"3. Trooper Brame testified that he believed that the driver of the Monte Carlo
may be under the influence of drugs and / or alcohol.
"4. Trooper Brame activated his emergency lights and pulled over the Monte
Carlo in Johnson County, Kansas."

Knight also stipulated to possessing the handgun discovered by Brame during the stop. At
the conclusion of the bench trial, the court found Knight guilty of carrying of a concealed
firearm, a misdemeanor, and possession of a firearm, a felony.

At the sentencing hearing, the court inquired about the public defenders' fee.
Knight's counsel told the court that the fee was $625. The trial court then asked Knight
when he could start paying the fee back and how much he could pay. Knight's counsel
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told the court that Knight could pay "$50 a month starting March 1st." The court replied
that Knight would "obviously . . . have to double up on that probably somewhere along
the way." The court made no further inquiry into Knight's ability to pay the fee or as to
any burden it might place on him.

DID THE TRIAL COURT ERR IN DENYING KNIGHT'S MOTION TO SUPPRESS
EVIDENCE SEIZED DURING THE CAR STOP?

On appeal, Knight contends that Trooper Brame acted unlawfully in stopping his
car because Brame did not have sufficient reasonable suspicion to justify the stop of
Knight's car.

An appellate court reviews the trial court's decision on a motion to suppress
evidence using a bifurcated standard. Without reweighing the evidence, the trial court's
findings are reviewed to determine whether they are supported by substantial competent
evidence. Then the ultimate legal conclusion regarding the suppression of evidence is
reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985
(2007).

Nevertheless, when the material facts to a trial court's decision on a motion to
suppress evidence are not in dispute, the question of whether to suppress is a question of
law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan.
1124, 1126, 192 P.3d 171 (2008).

Under the Fourth Amendment to the United States Constitution, a traffic stop is
considered a seizure. According to Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct.
1868 (1968), and as codified in K.S.A. 22-2402(1), a police officer must have a
reasonable suspicion based on articulable facts to stop a moving vehicle. Martin v.
Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008).
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Our Supreme Court explained in State v. Toothman, 267 Kan. 412, Syl. ¶ 4, 985
P.2d 701 (1999), the role of the appellate court in reviewing whether a stop is justified by
reasonable suspicion:

"When evaluating reasonable suspicion, we judge an officer's conduct in light of
common sense and ordinary human experience. Our task is not to pigeonhole each
purported fact as either consistent with innocent travel or manifestly suspicious, but to
determine whether the totality of the circumstances justify the detention. We make our
determination with deference to a trained law enforcement officer's ability to distinguish
between innocent and suspicious circumstances, remembering that reasonable suspicion
represents a minimum level of objective justification which is considerably less than
proof of wrongdoing by a preponderance of the evidence."

The State bears the burden of proof for a suppression motion and must prove to
the trial court the lawfulness of the search and seizure. State v. Ibarra, 282 Kan. 530, 533,
147 P.3d 842 (2006).

K.S.A. 8-1522 applies "[w]henever any roadway has been divided into two (2) or
more clearly marked lanes for traffic." K.S.A. 8-1522(a) requires that "[a] vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be moved from
such lane until the driver has first ascertained that such movement can be made with
safety."

Knight argues that the State must prove his crossing of the highway line was done
at a time when it was unsafe to do so. Knight cites Ross in support of his position. In
Ross, a motorist was driving on the highway when he briefly crossed over the fog line.
He was later stopped by a police officer for a violation of K.S.A. 8-1522(a). In ruling that
the stop was illegal, the Ross court stated that "in articulating reasonable suspicion that a
traffic offense has occurred in order to justify the traffic stop, the totality of the
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circumstances must make it appear to the officer that not only did the defendant's vehicle
move from its lane of travel, but it left its lane when it was not safe to do so." 37 Kan.
App. 2d at 130. The facts in Ross showed that the shoulder of the highway was paved,
there were no objects or hazards on the shoulder posing a danger, the fog line was only
briefly crossed once, there was no other weaving by the car, and the officer did not testify
that he was concerned that the driver was sleepy or intoxicated. Based on those facts, the
Ross court found that the officer did not have reasonable suspicion to warrant a traffic
stop. 37 Kan. App. 2d at 131.

The State, on the other hand, argues that the facts of Ross are distinguishable from
the facts in this case. The State points out that the failure to maintain a single lane of
travel was the officer's only justification for a traffic stop in Ross. The State, however,
notes that that situation is different from this case because Brame also suspected Knight
of driving while intoxicated or sleepy. Furthermore, the State notes that the facts of Ross
showed only one instance which could have been considered a single-lane violation. On
the other hand, the State asserts that Knight failed to maintain his proper lane of travel
several times and was also weaving within his lane of travel.

Most recently, in State v. Marx, 289 Kan. 657, 673, 215 P.3d 601 (2009), our
Supreme Court interpreted

"K.S.A. 8-1522(a) as establishing two separate rules of the road. The first requires a
driver to keep entirely within a single lane while traveling on a roadway with two or more
clearly marked lanes. That rule is temporarily suspended when it becomes impracticable
to stay within the lane markers and when the driver is properly effecting a lane change.
Proof that driving outside the lane markers created no safety hazard is not a defense to the
single lane rule. The second rule provides that before a driver may change lanes or move
from the current lane of travel to another location, he or she must ascertain that the
movement can be made with safety. A traffic infraction occurs under K.S.A. 8-1522(a)
when either rule of the road is violated."
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Moreover, the Marx court determined that K.S.A. 8-1522(a) "only requires
compliance with the single lane rule as nearly as practicable, i.e., compliance that is close
to that which is feasible. The statutory language tells us that a violation of K.S.A. 8-
1522(a) requires more than an incidental and minimal lane breach." 289 Kan. at 674 Most
significantly, in Marx, our Supreme Court held that the State had failed to carry its
burden of showing that the officer making the stop had a reasonable suspicion that the
vehicle's driver had violated K.S.A. 8-1522(a). Indeed, the court stated that the officer
furnished "no testimony from which the court could even infer that it was practicable to
maintain a single lane [of travel]." 289 Kan. at 676

Like Marx, this case presents an example of negative proof. There were two
possibilities: Knight violated the single-lane rule (K.S.A. 8-1522[a]) or he did not violate
the single-lane rule. Negative proof requires the proponent, in this case the State, to show
the absence of any other possibility other than the State's claim that Knight had violated
the single-lane rule. Here, the State failed to carry its burden of proof to eliminate the
other possibility: that Knight did not violate the single-lane rule. For example, the State
failed to meet Marx's second rule: the introduction of evidence showing that it was unsafe
for Knight to leave his lane of travel. Most significantly, the trial court declared that
Knight had not violated K.S.A. 8-1522(a) under the Ross holding: "I wholeheartedly
agree that the movement of the vehicle itself pursuant to the Ross holding doesn't show
an infraction occurred."

Moreover, based on Trooper Brame's testimony and on the stipulation that the stop
was based on Knight's car "cross[ing] the solid line on the left side of I-35 and weav[ing]
within its own lane," the State has failed to carry its burden to show that Knight did not
maintain a single lane of travel despite the fact that it was practicable to do so. This was a
failure of proof under Marx's first rule. As a result, the State failed to carry its burden to
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show that Trooper Brame had a reasonable suspicion that Knight was violating the
provisions of K.S.A. 8-1522(a) with his car.
Nonetheless, citing two cases from our Supreme Court, the State argues that
Trooper Brame's observation of Knight's car weaving within its own lane of travel would
furnish reasonable suspicion justifying a temporary investigative stop. First, in State v.
Field, 252 Kan. 657, 658, 847 P.2d 1280 (1993), an officer pulled over a motorist who
had been weaving within his lane of travel several times. The officer pointed out that it
was approximately 2 o'clock in the morning when he noticed the motorist's car weaving.
Although the evidence showed that the motorist had not committed a traffic violation, our
Supreme Court explained that a traffic violation was not required to justify a stop:

"There is no requirement that the officer actually observe a traffic violation being
committed. As indicated by the other cases cited herein, the repeated weaving of a
vehicle within its own lane may constitute reasonable suspicion for an officer to stop and
investigate the driver of the vehicle." 252 Kan. at 664.

As a result, the Field court concluded that the officer had "clearly shown
articulable facts sufficient to constitute reasonable suspicion" of driving under the
influence. 252 Kan. at 664.

Second, in State v. Hopper, 260 Kan. 66, 67, 917 P.2d 872 (1996), a motorist
drove over a centerline multiple times and weaved within his lane during adverse weather
conditions before he was stopped by an officer. The Hopper court found reasonable
suspicion that a violation of K.S.A. 8-1514(a), failure to drive on the right half of the
roadway, had occurred. 260 Kan. at 73. This case is distinguishable from the present case
because the Hopper court determined that the traffic infraction furnished the necessary
reasonable suspicion for the stop.

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Trooper Brame's decision to stop Knight's car was arguably based on two factors:
(1) the time of day—11:24 p.m. and (2) the driver's driving over the left or right lane
markers several times. As stated earlier, these same factors have supported a finding of
reasonable suspicion. As the State points out, the time (late night) combined with Knight
weaving in and out of lanes without signaling and weaving within his proper lane of
travel a number of times justified a temporary investigative stop.

Consequently, Trooper Brame, as the State maintains, had an independent basis
for reasonable suspicion other than the alleged K.S.A. 8-1522(a) violation. Although
Brame testified inconsistently regarding his justification for stopping Knight, twice
stating it was for a failure to maintain a single lane and once stating it was for suspected
driving while intoxicated, Brame did consistently state that he was concerned Knight was
either intoxicated or sleepy.

Moreover, the trial court determined that Trooper Brame was justified in stopping
Knight's car to determine if Knight was intoxicated. As a result, Trooper Brame's
observation of Knight's car weaving in and out of lanes without signaling and his car's
weaving within its proper lane of travel, standing alone, created sufficient reasonable
suspicion for Trooper Brame to believe that Knight was driving while intoxicated or
sleepy, which justified a temporary investigative stop. For this reason, Knight's argument
fails.

DOES CRIMINAL POSSESSION OF A FIREARM UNDER K.S.A. 21-4204(a)(4)(A)
APPLY TO PRIOR CONVICTIONS OF ATTEMPT CRIMES?

Knight also contends that his conviction under K.S.A. 21-4204(a)(4)(A) for
criminal possession of a firearm was inappropriate. Knight states that his prior felony
conviction for attempted possession of cocaine is not specifically enumerated in K.S.A.
21-4204(a)(4)(A), and therefore, he was not prohibited from possessing a firearm.
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Interpretation of a statute is a question of law over which this court has unlimited
review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
The first task of an appellate court is to "'ascertain the legislature's intent through
the statutory language it employs, giving ordinary words their ordinary meaning.'
[Citation omitted.]" State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).

"'When a statute is plain and unambiguous, we do not speculate as to the
legislative intent behind it and will not read the statute to add something not readily
found in it. We need not resort to statutory construction. It is only if the statute's language
or text is unclear or ambiguous that we move to the next analytical step, applying canons
of construction or relying on legislative history construing the statute to effect the
legislature's intent.' [Citation omitted.]" Double M Constr. v. Kansas Corporation
Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).

"'Errors plainly clerical in character, mere inadvertences of terminology, and
other similar inaccuracies or deficiencies will be disregarded or corrected where the
intention of the legislature is plain and unmistakable. But the court cannot delete vital
provisions or supply vital omissions in a statute. No matter what the legislature may have
really intended to do, if it did not in fact do it, under any reasonable interpretation of the
language used, the defect is one which the legislature alone can correct.' [Citation
omitted.]" Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161
(1993).

"As a general rule, criminal statutes must be strictly construed in favor of the
accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the
accused. This rule of strict construction is nevertheless subordinate to the rule that
judicial interpretation must be reasonable and sensible to effect legislative design and
intent. [Citation omitted.]" Gracey, 288 Kan. at 257-58.

K.S.A. 21-4204(a) states:

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"Criminal possession of a firearm is:
. . . .
(3) possession of any firearm by a person who, within the preceding five years
has been convicted of a felony, other than those specified in subsection (a)(4)(A) . . .
(4) possession of any firearm by a person who, within the preceding 10 years, has
been convicted of: (A) A felony under K.S.A. 2008 Supp. 65-4160 . . . ."

Knight first argues that, although K.S.A. 21-4204(a)(4)(A) criminalizes possession
of a firearm if a person has been convicted of K.S.A. 2008 Supp. 65-4160 for possession
of cocaine, the statute is silent with regard to convictions of attempt crimes, including
attempted possession of cocaine. K.S.A. 21-4204(a)(4)(A) does not include K.S.A. 21-
3301 (the attempt statute) in the list of applicable felonies, nor does it state that attempts
of the enumerated felonies qualify for inclusion. Knight points out that a different
subsection, K.S.A. 21-4204(a)(3), serves as a "'catch-all'" provision and applies to all
crimes not specifically enumerated in K.S.A. 21-4204(a)(4). Knight argues that attempt
crimes should fall under this "'catch-all'" provision.

On the other hand, the State maintains that K.S.A. 21-4204(a)(4)(A) "only requires
a conviction under one of the enumerated offenses, not a conviction of the offense." The
State argues that Knight's prior conviction for attempted possession of cocaine was a
conviction under both the attempt statute, K.S.A. 21-3301, and the possession of cocaine
statute, K.S.A. 2008 Supp. 65-4160(a). The State contends that although Knight was not
convicted of K.S.A. 2008 Supp. 65-4160(a), he was convicted of a crime under K.S.A.
2008 Supp. 65-4160(a). To support this contention, the State maintains that every attempt
crime must have an underlying crime. Under this reasoning, Knight's conviction for
attempted possession of cocaine would have the underlying crime of possession of
cocaine.

Additionally, the State relies on K.S.A. 21-3107(2)(c) for the statement that "an
attempt to commit the crime charged is a lesser included crime." Because attempt is a
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lesser included crime, the State reasons Knight's conviction for attempted possession of
cocaine "should therefore be a felony under K.S.A. [2008 Supp. 65-4160, possession of
cocaine]." The State's reliance upon K.S.A. 21-3107 is misplaced. K.S.A. 21-3107(2)
only applies during the prosecution of a crime and allows a defendant to "be convicted of
either the crime charged or a lesser included crime." One definition for a lesser included
crime in K.S.A. 21-3107(2)(c) is "an attempt to commit the crime charged."
Hypothetically, under K.S.A. 21-3107(2), a defendant who is charged with possession of
cocaine could be convicted of the lesser included crime of attempted possession of
cocaine instead. The sole purpose of K.S.A. 21-3107(2)(a) is to give the trier of fact the
option to convict a defendant of the attempt crime if it finds that the elements of the
charged crime have not been met. The State uses K.S.A. 21-3107(2) to characterize
attempted possession of cocaine as the same crime as possession of cocaine, which is
clearly not the purpose it was intended for and is an unreasonable interpretation of the
statute.

Indeed, the State is urging the court to find a conviction under the principal crime
even though Knight has been convicted only of an attempt of the principal crime. The
State's suggestion is improper, however, because Knight was not convicted of possession
of cocaine; he was convicted of attempted possession of cocaine. Only if Knight had
actually committed the crime of possession of cocaine, and thus fulfilled all the elements
of the crime, should he be considered as having a conviction under K.S.A. 2008 Supp.
65-4160(a). Any effort to place Knight's attempted possession of cocaine under K.S.A.
2008 Supp. 65-4160(a) would subvert the plain meaning of the statute.

Knight next contends that attempted possession of cocaine is a separate crime
from possession of cocaine and relies on State v. Martens, 274 Kan. 459, 54 P.3d 960
(2002), to support his argument. In Martens, our Supreme Court determined that
attempted manufacture of methamphetamine and manufacture of methamphetamine are
separate offenses. 274 Kan. at 465. Attempted manufacture is controlled by the attempt
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statute, K.S.A. 21-3301, rather than the manufacture of controlled substances statute,
K.S.A. 65-4159. 274 Kan. at 465. Knight contends that, under this reasoning, attempted
possession of cocaine should likewise be a separate offense from possession of cocaine.

Nevertheless, the State does not dispute Knight's assertion that K.S.A. 21-3301
and K.S.A. 2008 Supp. 65-4160(a) are separate offenses. The State does disagree with
Knight's use of Martens though and distinguishes it. The State points out that, unlike
Knight, the defendant in Martens was only charged under K.S.A. 65-4159 for attempted
manufacture of methamphetamine. The State maintains that Martens did not make any
determinations regarding K.S.A. 21-3301.

Knight improperly relies on Martens to establish that the crime of possession of
cocaine is a separate offense from attempted possession of cocaine. Under the statutory
language of K.S.A. 2008 Supp. 65-4160, the crime of possession of cocaine occurs only
when all elements of the crime are established. Thus, to be convicted of possession of
cocaine, the offender must actually be in possession of cocaine. In Martens, however, the
title of the statute in question implied that attempts of manufacturing methamphetamine
were also covered by the statute. 274 Kan. at 464-65. The Martens court turned to the
statutory language and determined that attempt crimes were not included in the statute. In
addition, the court found that "attempted manufacture of a controlled substance is a
separate offense controlled by K.S.A. 21-3301(a)." 274 Kan. at 465. The Martens ruling
does not apply to this case though because the statutory language of K.S.A. 2008 Supp.
65-4160, possession of cocaine, does not state or imply that an attempt to possess is
covered by the statute. Instead, the general attempt statute, K.S.A. 22-3301, controls. As
a result, even though Martens does not apply, attempted possession of cocaine is
nonetheless a separate offense from possession of cocaine.

Knight also argues that when writing K.S.A. 21-4204(a)(4)(A), the legislature
could have included attempt crimes. He points out another statute, K.S.A. 21-4643(a)(1),
19

that mandates minimum terms of imprisonment for a variety of sex offenses. Along with
the sex offenses enumerated in the statute is a clause that includes any attempt of the
listed offenses. K.S.A. 21-4643(a)(1)(G). By omitting attempt crimes from K.S.A. 21-
4204(a)(4)(A), Knight reasons that the legislature did not intend to include them in the
firearms prohibition.

Indeed, a variety of examples similar to the one identified by Knight can be found
in other Kansas criminal statutes. K.S.A. 21-4642 (habitual sex offender enhanced
sentencing statute defines sexually violent crimes and includes attempts of those crimes);
K.S.A. 21-3439(a)(4) (defines capital murder as the killing of the victim of several crimes
and includes attempts of those crimes); K.S.A. 21-4708 (crime severity level for drug
offenses also applies to attempts of drug crimes). Each of these examples uses explicit
language to include attempt crimes within a list of other enumerated crimes of the statute.
Similar explicit language is absent in K.S.A. 21-4204(a)(4)(A).

This absence of explicit language from K.S.A. 21-4204(a)(4)(A) combined with
the rule of lenity leads this court to determine that the legislature did not intend to include
the separate crime of attempted possession of cocaine within K.S.A. 21-4204(a)(4)(A).
Under the rule of lenity, when there is ambiguity in a penal statute's meaning, it should be
narrowly construed in favor of the defendant. The rule of lenity encompasses laws
establishing criminal liability. This is because citizens should have fair notice in the
statute of conduct that is criminal. State v. Zeit, 39 Kan. App. 2d 364, 368, 180 P.3d 1068
(2008). When there is some reasonable doubt about the meaning of a criminal statute, a
narrow interpretation ensures that the courts do not criminalize conduct that the
legislature did not intend to make criminal, while leaving the legislature free to amend
the statute to clarify its position and to provide notice to future actors that certain conduct
is illegal. State v. Coman, 42 Kan. App. 2d 592, 610-11, 214 P.3d 1198 (2009) (Leben, J.,
dissenting) (citing Jellum, Mastering Statutory Interpretation 238 [2008]). Because the
separate crime of attempted possession of cocaine is not explicitly included within K.S.A.
20

21-4204(a)(4)(A), we determine that such crime cannot be used to convict a defendant of
criminal possession of a firearm under K.S.A. 21-4204(a)(4)(A). Accordingly, we reverse
Knight's conviction for criminal possession of a firearm under K.S.A. 21-4204(a)(4)(A).

DOES KNIGHT'S CONVICTION FOR CARRYING A CONCEALED WEAPON
VIOLATE HIS CONSTITUTIONAL RIGHT TO BEAR ARMS?

Knight next contends that K.S.A. 21-4201(a)(4), which criminalizes the
possession of a concealed firearm, violates his right to bear arms under the Second
Amendment to the United States Constitution and under § 4 of the Kansas Constitution
Bill of Rights. Although Knight admits that this issue was not brought up at the trial court
level, he argues that this court should hear it for the first time on appeal.

Issues not raised before the trial court cannot be raised on appeal. State v.
Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Furthermore, constitutional grounds
for reversal asserted for the first time on appeal are also not properly before the appellate
court for review. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009). Nevertheless, there
are several exceptions to the general rule that a new legal theory may not be asserted for
the first time on appeal, including the following: (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts and is finally determinative of
the case; (2) the consideration of the theory is necessary to serve the ends of justice or to
prevent denial of fundamental rights; and (3) the judgment of the trial court may be
upheld on appeal despite its relying on the wrong ground or its assigning a wrong reason
for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).

The constitutionality of a statute presents a question of law, which we review de
novo. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008). The Second Amendment
to the United States Constitution states: "A well regulated Militia, being necessary to the
21

security of a free State, the right of the people to keep and bear Arms, shall not be
infringed."

In response to Knight's claim, the State argues that the Second Amendment applies
only to the federal government and not to the states. As a result, the State contends that
Knight's argument has no merit. The State also points out that the recent United States
Supreme Court case, District of Columbia v. Heller, 554 U.S. __, 171 L. Ed. 2d 637, 128
S. Ct. 2783 (2008), did not address "whether the Second Amendment applies to the
states." Nevertheless, the Supreme Court did not need to address Second Amendment
application to the states, because Heller involved a gun regulation in the District of
Columbia, not a state regulation. 128 S. Ct. at 2813 (noting that the applicability of the
Second Amendment to the states was not at issue in Heller).

Finally, the State cites Maloney v. Cuomo, 554 F.3d 56, 58 (2d Cir. 2009), for the
proposition that the Second Amendment is only a limitation on the federal government.
The Maloney decision relied upon a prior Supreme Court case, Presser v. Illinois, 116
U.S. 252, 265, 29 L. Ed. 615, 6 S. Ct. 580 (1886), which held that the Second
Amendment does not limit the power of the states. Maloney, 554 F. 3d at 58.

Knight counters that the Second Amendment applies to the states under the United
States Supreme Court's modern 14th Amendment incorporation doctrine. Under the
incorporation doctrine, certain substantive rights granted in the first eight amendments to
the Constitution can be incorporated by the Due Process Clause of the 14th Amendment,
and thus apply to the states. Twining v. New Jersey, 211 U.S. 78, 99, 53 L. Ed. 97, 29 S.
Ct. 14 (1908), overruled on other grounds Malloy v. Hogan, 378 U.S. 1, 6, 12 L. Ed. 2d
653, 84 S. Ct. 1489 (1964). Knight maintains that the Presser decision cited by Maloney
occurred before the Supreme Court's adoption of the incorporation doctrine.
Consequently, Knight argues that Presser is not binding on the issue. Knight further
22

maintains that the Maloney court failed to "conduct a selective incorporation analysis of
whether the right to bear arms should apply to the states."

Under a selective incorporation analysis, only certain fundamental rights and
liberty interests are protected. Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed.
2d 772, 117 S. Ct. 2258 (1997). These protected rights and interests are those "which are,
objectively, 'deeply rooted in this Nation's history and tradition,' [citations omitted] and
'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would
exist if they were sacrificed' [citation omitted]." 521 U.S. at 720-21. Examples of
fundamental protected rights and interests recognized by the United States Supreme
Court include "the rights to marry [citation omitted]; to have children [citation omitted];
to direct the education and upbringing of one's children [citations omitted]; to marital
privacy [citation omitted]; to use contraception [citations omitted]; to bodily integrity
[citation omitted], and to abortion [citation omitted]." 521 U.S. at 720. Nevertheless, the
Supreme Court has never determined whether the right to bear arms is a fundamental
protected right or interest.

In Heller, Knight contends that when the Supreme Court implied the right to bear
arms, it acknowledged a fundamental right. Knight further points out that the Ninth
Circuit Court of Appeals, in Nordyke v. King, 563 F.3d 439, 457 (9th Cir. 2009), vacated
611 F.3d 1015 (9th Cir. 2010) (en banc), concluded that the right to bear arms is
incorporated by the 14th Amendment based on the Heller opinion under a selective
incorporation approach.

In contrast, several courts have expressed disagreement with the Nordyke decision.
See National Rifle Ass'n of Amer. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), rev'd
561 U.S. __, 177 L. Ed 2d 894, 130 S. Ct. 3020 (2010); State v. Turnbull, 766 N.W.2d
78, 80 (Minn. App. 2009); Crespo v. Crespo, 408 N.J. Super. 25, 41-43, 972 A.2d 1169
(2009). In rejecting Nordyke's selective incorporation approach, the NRA court
23

determined that the Second Amendment, under current Supreme Court precedents, is not
one of the parts of the Bill of Rights that has been incorporated by the 14th Amendment.
As a result, the NRA court concluded that the Second Amendment does not apply to the
states. In addition, the NRA court agreed with the Second Circuit Court of Appeals'
decision in Maloney. There, the Maloney court held that United States v. Cruikshank, 92
U.S. 542, 23 L. Ed. 588 (1876); Presser; and Miller v. Texas, 153 U.S. 535, 14 S. Ct.
874, 38 L. Ed. 812 (1894), still control. In those cases, the Supreme Court had
specifically rejected attempts to apply the Second Amendment to the states.

Nevertheless, the United States Supreme Court recently held that the right to "keep
and bear arms" embodied in the Second Amendment applies not only to the federal
government, but also to the individual states. See McDonald v. Chicago, 561 U.S. __,
177 L. Ed. 2d 894, 130 S. Ct. 3020 (2010). A four-justice plurality agreed that the Due
Process Clause of the 14th Amendment to the United States Constitution "incorporates"
the Second Amendment's right to keep and bear arms, which was recognized in District
of Columbia v. Heller, 554 U.S. __, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008).

In addition, in arguing that the concealed firearms ban is unconstitutional, Knight
returns to Heller. He contends that the Heller opinion extends individuals a right to bear
arms outside the home. Knight points out that Heller specifically contemplated
individuals carrying a firearm on themselves or in their clothing. 128 S. Ct. at 2793. He
further argues that Heller conferred an individual right, not only to carry, but also to carry
concealed firearms on oneself outside of the home. The State, on the other hand, urges
that Heller be read narrowly, only applying to "absolute prohibitions of handguns held
and used for self-defense in the home."

In Heller, a police officer challenged a Washington, D.C., ban on handguns. Under
the ban, despite a registration requirement, handguns could not be registered and a special
license was necessary to carry a handgun. Even lawfully owned firearms were required to
24

be "'unloaded and dissembled or bound by a trigger lock or similar device.'" 128 S. Ct. at
2788. The Supreme Court's decision turned solely on the issue of handgun possession in
the home. The Court explicitly stated that the "ban on handgun possession in the home"
and the "prohibition against rendering any lawful firearm in the home operable for the
purpose of immediate self-defense" were violations of the Second Amendment. 128 S.
Ct. at 2821-22. It is clear that the Court was drawing a narrow line regarding the
violations related solely to use of a handgun in the home for self-defense purposes.
Knight's argument, that Heller conferred on an individual the right to carry a concealed
firearm, is unpersuasive.

Knight admits that Heller examined 19th-century case law and found that a
majority of courts ruled that prohibitions on concealed firearms were constitutional.
Nevertheless, Knight maintains that when the Heller Court listed various regulations that
were presumptively lawful, it failed to mention prohibitions on concealed firearms.
Knight contends that this omission by the Supreme Court meant that prohibitions on
concealed firearms are not presumptively lawful.

The State counters by asserting that the Heller Court's list of presumptively lawful
regulatory measures was not exhaustive. In its decision, the Heller Court specifically
stated that its list was not exhaustive and only served to identify examples of
presumptively constitutional laws under the Second Amendment. 128 S. Ct. at 2817 n.26.
Any failure by the Heller Court to include prohibitions on concealed firearms does not
imply that such requirements are unconstitutional. Additionally, the Heller Court
specifically mentioned prohibitions on concealed firearms in the sentence before its list of
presumptively lawful prohibitions. 128 S. Ct. at 2816-17. The Heller Court began the
paragraph stating that "the right secured by the Second Amendment is not unlimited" and,
two sentences later, noted prohibitions on carrying concealed firearms as an example. 128
S. Ct. at 2816. This clearly shows that the Heller Court considered concealed firearms
25

prohibitions to be presumptively constitutional under the Second Amendment. As a
result, Knight's argument fails.

DID THE TRIAL COURT ERR IN ORDERING KNIGHT TO REIMBURSE THE
BOARD OF INDIGENTS' DEFENSE SERVICES FOR ATTORNEY FEES?

Finally, Knight contends that the trial court incorrectly ordered him to reimburse
the Board of Indigents' Defense Services (BIDS) for attorney fees without first inquiring
about his ability to pay or determining whether a financial burden would be placed on
him if required to pay.

K.S.A. 22-4513 provides for the reimbursement of BIDS attorney fees by
convicted criminal defendants. K.S.A. 22-4513(b) reads in part: "In determining the
amount and method of payment of such sum, the court shall take account of the financial
resources of the defendant and the nature of the burden that payment of such sum will
impose."

Interpretation of a statute is a question of law over which this court has unlimited
review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).

In State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), our Supreme Court
directed sentencing courts, at the time of the initial assessment of BIDS attorney fees
under K.S.A. 22-4513, to "consider the financial resources of the defendant and the
nature of the burden that payment will impose explicitly, stating on the record how those
factors have been weighed in the court's decision." The remedy for a sentencing court's
failure to make such explicit findings is to remand to the sentencing court for such
findings. 281 Kan. at 548.

26

Here, Knight made no objection to the trial court's failure to inquire about his
financial resources or the burden a reimbursement payment would place on him.
Nevertheless, a failure to object to the imposition of BIDS fees has not disallowed parties
from raising the issue for the first time on appeal. See Robinson, 281 Kan. at 541; State v.
Hawkins, 37 Kan. App. 2d 195, 197, 152 P.3d 85 (2007), aff'd 285 Kan. 842, 176 P.3d
174 (2008).

The State argues that the court did consider Knight's financial resources when it
asked Knight how much he could pay toward the fees and when he could start paying the
fees. Nevertheless, the facts in this case show that the sentencing court failed to make the
necessary Robinson inquiries. The trial court merely asked Knight how much he could
pay and when he could start paying it back; it did not inquire into Knight's financial
resources. The trial court also did not consider the nature of the burden a reimbursement
payment would impose on Knight. Finally, the court did not state how those factors were
weighed in coming to the decision to impose a reimbursement payment on Knight.

Consequently, the trial court erred in ordering Knight to pay BIDS fees without
first making the proper Robinson inquiries on the record.

Affirmed in part, reversed in part, vacated in part, and remanded with directions.