State v. Tapia (Supreme Court)

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,596

STATE OF KANSAS,
Appellee,

v.

ALEXANDER TAPIA,
Appellant.


SYLLABUS BY THE COURT


1.
The State's failure to allege an overt act in furtherance of a conspiracy as required
by K.S.A. 21-3302(a) does not raise an insufficiency of the evidence issue.

2.
Under the facts of this case, it was legally and factually appropriate to give PIK
Crim. 3d 52.18, a cautionary instruction regarding accomplice testimony. Nevertheless,
the failure to give the instruction was not clearly erroneous because the accomplices'
testimony was corroborated by other evidence, the defendant's guilt was plain, and the
jury was cautioned about the weight to be accorded testimonial evidence in other
instructions.

3.
Use of prior convictions in a criminal defendant's criminal history score to
enhance the defendant's sentence without requiring the history to be included in the
complaint and proved to a jury beyond a reasonable doubt does not violate the
defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000).
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4.
An appellate court lacks jurisdiction to review a criminal defendant's complaint
that a sentencing court abused its discretion by sentencing the defendant to any term
within the applicable presumptive grid block, even if the sentence is the aggravated term.

Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 615, 214 P.3d 1211 (2009).
Appeal from Seward District Court; KIM R. SCHROEDER, judge. Opinion filed November 2, 2012.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Don L. Scott, county attorney, argued the cause, and Steve Six, attorney general, was with him on
the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: A jury convicted Alexander Tapia of nonresidential burglary, theft,
vehicular burglary, and conspiracy to commit nonresidential burglary. On appeal to the
Court of Appeals, Tapia argued: (1) The evidence to support his charge of conspiracy to
commit nonresidential burglary was insufficient due to a defect in the complaint; (2) the
district court erred by denying his request for an accomplice jury instruction; (3) the
district court violated his constitutional rights when it sentenced him to an enhanced
sentence based upon his criminal history without first proving those facts to a jury
beyond a reasonable doubt; and (4) the district court violated his constitutional rights
when it sentenced him to the aggravated terms within the applicable sentencing grid
boxes without first proving those facts to a jury beyond a reasonable doubt.
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The Court of Appeals rejected Tapia's arguments and affirmed his convictions and
sentences. State v. Tapia, 42 Kan. App. 2d 615, 214 P.3d 1211 (2009), rev. granted
September 8, 2010. On review of that decision, we affirm the Court of Appeals and
district court.

FACTS AND PROCEDURAL HISTORY

Around midnight on June 11, 2007, Highway Patrol Trooper James Parr stopped a
Chevy Tahoe for speeding. The Tahoe was occupied by Tapia, Aram Garcia, and Omar
Fraire. Parr issued a warning to the driver and released him.

Approximately 1 hour later, law enforcement officers responded to a reported
burglary at the residence of James Mongold. The passenger window had been broken out
of a pickup truck parked outside the residence, and a computer jump drive, a cell phone, a
garage door opener, and gas cards had been taken from the pickup truck. Also, Mongold's
garage door had been opened and several items were stolen from the garage, including a
tool box, several hand tools, and two floor creepers that are used to slide under a vehicle
to change oil or perform other work.

Shortly after law enforcement officers were dispatched to the burglary, Parr heard
radio transmissions that included a description of the burglar and the suspect's vehicle.
Within a few minutes, Parr saw a vehicle, a Chevy Tahoe, matching that description. The
Tahoe's driver was speeding and ran a red stoplight, causing Parr to initiate a traffic stop.
When Parr approached the Tahoe, he realized it was the same Tahoe he had stopped
earlier. He also noticed that the occupants were the same. Parr observed (1) a car jack, a
floor creeper, and a tool box that he had not seen during the first stop; (2) Tapia's clothes
matched the description the dispatcher had given of the burglar; and (3) Tapia was
attempting to take off black baseball gloves, which Parr found unusual given that he did
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not see any other baseball equipment and it was very hot and muggy. At this point, Tapia,
Garcia, and Fraire were arrested. As a search incident to arrest, Parr searched Tapia's
pockets where he found gas cards and a jump drive. Mongold later identified the items
found in the Tahoe and on Tapia's person as those taken from the pickup truck and
garage.

After the arrest, when interviewed by law enforcement officers, Fraire denied any
knowledge of the crimes. Garcia, however, gave a statement. His statement was described
in an affidavit filed with the district court in support of a warrant for Tapia's arrest and
later made available to Tapia through a discovery order entered by the court. According
to information in the affidavit, Garcia stated that he was driving the Tahoe when Fraire
told him to pull over near a white pickup truck. Tapia got out of the Tahoe, broke the
pickup truck's window, and grabbed a cell phone and a garage door opener. Fraire or
Tapia used the garage door opener to get into the garage, and both of them carried a tool
box out of the garage and put it in the back of the Tahoe. Garcia then drove Fraire and
Tapia from the scene.

Garcia, Fraire, and Tapia were all charged, but Garcia and Fraire entered into
diversion agreements. Both testified at Tapia's jury trial. Garcia testified that Tapia saw
Mongold's pickup truck and decided to break into it. Garcia served as a lookout and
testified that he did not actually see Tapia break the pickup truck's window, but he heard
the window shatter. Tapia returned to the Tahoe with a cell phone and a garage door
opener, which Tapia used to open Mongold's garage. At Tapia's direction, Garcia pulled
the Tahoe into the alley behind the garage. From his vantage point, Garcia did not
actually see Tapia go into the garage, but when Tapia came back to the Tahoe, he was
carrying a tool box. Tapia then went back to the garage and returned with two creepers.
Garcia also testified that Tapia was wearing black baseball gloves when he headed
toward the garage. Contrary to the statement Garcia had given to the officers on the night
of the incident, Garcia told the jury that Fraire never exited the Tahoe. According to
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Garcia, when Parr stopped them the second time, they were driving to Tapia's residence
so Tapia could get his truck because he planned to return and "wipe out the house [and]
the garage."

Fraire's testimony confirmed Garcia's version of events. Fraire also indicated that
Tapia was the only individual who entered Mongold's truck and garage.

The jury convicted Tapia of nonresidential burglary, theft, vehicular burglary, and
conspiracy to commit nonresidential burglary. The district court sentenced Tapia to serve
23 months' imprisonment for nonresidential burglary, 7 months for theft, 7 months for
vehicular burglary, and 7 months for conspiracy to commit nonresidential burglary, all
aggravated terms within the applicable sentencing grid boxes. The court ordered all of the
felony sentences to be served consecutive to each other and to Tapia's sentences imposed
in another case.

Tapia timely appealed. After the Court of Appeals affirmed his convictions and
sentences, Tapia, 42 Kan. App. 2d at 618-23, Tapia filed a petition seeking this court's
review of the Court of Appeals' decision. This court accepted review and has jurisdiction
under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).

SUFFICIENCY OF EVIDENCE

Before the Court of Appeals, Tapia challenged the sufficiency of the evidence
relating to his conspiracy conviction on the ground that the complaint failed to allege an
overt act in furtherance of a conspiracy agreement as required by K.S.A. 21-3302(a)
(conspiracy), which states:

"(a) A conspiracy is an agreement with another person to commit a crime or to
assist in committing a crime. No person may be convicted of a conspiracy unless an overt
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act in furtherance of such conspiracy is alleged and proved to have been committed by
such person or by a co-conspirator." (Emphasis added.)

Here, the complaint against Tapia failed to satisfy this requirement because the
State failed to allege an overt act, instead reiterating that there was an agreement.
Specifically, the complaint stated:

"That on or about the 11th day of June, 2007 the said above person named in the
captioned . . . of the complaint, within the above named jurisdiction in the State of
Kansas, then and there being, did then and there contrary to statute or ordinance
unlawfully, feloniously, and willfully agree with another person, to-wit: Aram Garcia and
Omar Fraire to commit the crime of Burglary and an overt act in furtherance of the
conspiracy was committed, to wit: agreed with Aram Garcia and Omar Fraire to break
into a garage to commit a theft therein, in violation of K.S.A. 21-3302 and 21-3715(b)
Conspiracy to Commit Burglary, a level 9 nonperson felony." (Emphasis added.)

The Court of Appeals held the complaint against Tapia was "clearly . . . defective"
for failing to comply with the pleading requirement in K.S.A. 21-3302(a). Tapia, 42 Kan.
App. 2d at 618. The State does not challenge this ruling. Hence, we accept that the
complaint was defective and that the State failed to meet the allegation requirement of
K.S.A. 21-3302(a).

Because the complaint was defective, the Court of Appeals addressed Tapia's
potential remedy. In doing so, the panel concluded the defect in the complaint did not
deprive the district court of jurisdiction to try Tapia on the conspiracy charge. Further, as
we will discuss in more detail, the panel concluded that Tapia's insufficiency of evidence
argument was improper. See Tapia, 42 Kan. App. 2d at 618-22.

In his petition for review, Tapia contends the Court of Appeals erred in treating his
argument as a defective complaint claim. Rather, Tapia argues that because K.S.A. 21-
7

3302(a) "requires the overt act had to both be alleged and proved, and it was not alleged
in this case, the State presented insufficient evidence to support the conspiracy charge
against Mr. Tapia." Tapia asserts the Court of Appeals panel should have followed the
decision of another Court of Appeals panel in State v. Marino, 34 Kan. App. 2d 857, 864,
126 P.3d 426, rev. denied 281 Kan. 1380 (2006). In Marino, the Court of Appeals
determined the evidence of conspiracy was insufficient because the State failed to allege
an overt act in Marino's complaint as required in K.S.A. 21-3302(a) and, therefore, failed
to prove that an overt act had been committed in furtherance of the conspiracy. Marino,
34 Kan. App. 2d at 861-66.

In this case, the Court of Appeals disagreed with Tapia's argument and concluded
the result in Marino was at odds with this court's decision in State v. Shirley, 277 Kan.
659, 89 P.3d 649 (2003). Tapia, 42 Kan. App. 2d at 621-22.

Shirley and Hall

In Shirley, the defendant, like Tapia, argued the complaint charging him with
conspiracy to manufacture methamphetamine was defective because it failed to allege the
specific overt act committed in furtherance of the conspiracy as required by K.S.A. 21-
3302(a). The Shirley court agreed with the defendant's argument because the complaint
merely stated that the defendant had committed an "'overt act in furtherance of the
conspiracy.'" Shirley, 277 Kan. at 665.

The Shirley court then examined whether this deficiency deprived the district court
of jurisdiction over the complaint. To answer this question, the Shirley court applied the
holding of State v. Hall, 246 Kan. 728, 754, 793 P.2d 737 (1990), overruled in part on
other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).

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In Hall, the court examined several issues in which the defendant argued that
various charges in an information were defective. The Hall court explained the principles
that served as the basis for Hall's arguments, stating:

"The Bill of Rights in the Kansas Constitution requires that the accused be
allowed to demand the nature and cause of the accusation. Kan. Const. Bill of Rights, §
10. . . . The § 10 language is similar to the language of the Sixth Amendment to the
United States Constitution, which extends to an accused the right 'to be informed of the
nature and cause of the accusation.' [Citation omitted.]
"The constitutional protections referred to are implemented by the requirements
of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and
concise written statement of the essential facts constituting the crime charged and, when
drawn in the language of the statute, shall be deemed sufficient. An information is
sufficient if it clearly informs the defendant of the precise offense of which he or she is
accused so that the accused may prepare a defense and so that a judgment thereon will
safeguard the accused from a subsequent prosecution for the same offense. [Citation
omitted.]" Hall, 246 Kan. at 753-54.

The Hall court also noted that caselaw required each element of the crime to be alleged.
See Hall, 246 Kan. at 746-47.

A failure to meet these requirements is not necessarily fatal to the State's case,
however. See Hall, 246 Kan. at 756-59. The Hall court discussed procedural mechanisms
available to the State to cure a defective allegation, such as an amendment to the
complaint or information, and those available to a defendant to protect the right to notice,
including the right to request a bill of particulars or to file a motion to arrest judgment.
Hall, 246 Kan. at 758-60.

Even if these procedural mechanisms are not used, a defendant is not necessarily
entitled to a reversal of a conviction. The Hall court explained that "[t]he longer it takes
for the defendant to challenge the sufficiency of the information, the greater the
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presumption of regularity." Hall, 246 Kan. at 761. The Hall court adopted two different
tests for determining if a defective complaint warrants reversal of a conviction—one to
be used if a defendant challenges the charging document through a motion for arrest of
judgment before a district court, which the Hall court indicated was the "proper
procedure," and the other if a defendant raises the challenge for the first time on appeal.
Hall, 246 Kan. at 760-61, 764-65; see Shirley, 277 Kan. at 661-62.

As to the first test, when a motion to arrest judgment is filed in the district court,
the Hall court directed the district court to "test its merit by utilizing the rationale of our
pre-Hall cases." Hall, 246 Kan. at 764. The Shirley court explained what this meant,
stating: "Under the pre-Hall standard, the court must focus on technical considerations.
[Citations omitted.] If the charging document does not set out the essential elements of
the crime, it is fatally defective and the conviction must be reversed for lack of
jurisdiction. [Citation omitted.]." Shirley, 277 Kan. at 661-62.

As to the second test, a defendant who waits until the appeal to challenge the
charging document must satisfy a "new standard of review" established by the Hall court.
Shirley, 277 Kan. at 662; see Hall, 246 Kan. at 765. The Shirley court explained that this
new standard—referred to as the post-Hall standard or test—requires the defendant to
show that the claimed defect either

"(1) prejudiced the defendant's preparation of a defense, (2) impaired the defendant's
ability to plead the conviction in any subsequent prosecution, or (3) limited the
defendant's substantial rights to a fair trial under the Sixth Amendment to the United
States Constitution or Section 10 of the Kansas Constitution Bill of Rights. [Hall,] 246
Kan. at 765." Shirley, 277 Kan. at 662.

The Shirley court, applying these principles from Hall, noted the defendant
followed the "proper procedure" and first challenged the complaint at the district court
level in a motion for arrest of judgment. Hence, the court concluded, the applicable test
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was the pre-Hall standard that focuses on technical compliance with the essential
elements of the crime. Shirley, 277 Kan. at 661-62.

In examining the statutory requirements under the conspiracy statute, K.S.A. 21-
3302(a), the Shirley court sought to harmonize K.S.A. 21-3302(a) with K.S.A. 22-
3201(b), the statute that requires the complaint to state "the essential facts constituting the
crime charged." The court noted the specific allegation requirement under the conspiracy
statute, K.S.A. 21-3302(a), concluding it "is the only criminal statute that requires such a
specific allegation in the elements of a crime." Shirley, 277 Kan. at 665. Applying this
unique requirement, the Shirley court concluded that when the State simply alleges an
"'overt act in furtherance of the conspiracy,' such language fails to adequately inform the
accused of the charges against him or her and limits his or her ability to prepare a
defense." Shirley, 277 Kan. at 665. Thus, the court ruled that the complaint in Shirley's
case was fatally defective under the pre-Hall technical standard and, as a result, his
conviction had to be reversed. Shirley, 277 Kan. at 665.

Tapia's Discussion of Shirley and Hall

In this case, the Court of Appeals, having found that the allegation in the
complaint against Tapia was insufficient because it only alleged an agreement and not an
overt act, applied the post-Hall standard because Tapia had not filed a motion to arrest
judgment in the district court. Instead, Tapia had waited until his appeal to raise a
challenge. The Court of Appeals noted: "Tapia presents no facts or arguments on appeal
that address the Hall standards. He places all his eggs in the Marino basket." Tapia, 42
Kan. App. 2d at 621. After a discussion of the post-Hall standard, the Court of Appeals
concluded Tapia had not been prejudiced in his defense because he was aware of Garcia's
and Fraire's statements to officers, the wording of the complaint would not impede
Tapia's ability to assert double jeopardy in a later prosecution, and Tapia's rights at trial
had not been limited. Tapia, 42 Kan. App. 2d at 621. In conclusion, the Court of Appeals
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noted that "there was overwhelming evidence of overt acts committed by Tapia in
breaking into the truck and into the garage. Shortly after the burglary Tapia was caught
with the stolen goods in the vehicle and on his person." Tapia, 42 Kan. App. 2d at 622;
see also State v. Wilson, No. 105,029, 2011 WL 5389894, at *8 (Kan. App. 2011)
(unpublished opinion) (rejecting sufficiency of the evidence argument based on failure to
allege an overt act and "follow[ing] the Tapia court's well-reasoned analysis and
review[ing] the issue under the Hall factors, as required by Shirley"), petition for review
filed December 5, 2011.

In his petition for review, Tapia does not take issue with the Court of Appeals'
analysis of the post-Hall factors. Nor does he question the Hall decision. Rather, he
states:

"Mr. Tapia does not now, and did not before the Court of Appeals, argue that his
defective complaint prejudiced his ability to defend himself at trial. Mr. Tapia's argument
has always been that the State presented insufficient evidence of conspiracy because, in
order to convict Mr. Tapia of conspiracy under the plain language of the conspiracy
statute, that overt act had to be both alleged and proven. Mr. Tapia's complaint was
defective, however, his issue on appeal is that this caused the State to present insufficient
evidence. The State proved the overt act at trial. However, the State failed to allege the
overt act. Therefore, without the required allegation of the overt act (which did not occur
because of the defective complaint), the State has presented insufficient evidence of Mr.
Tapia's conspiracy in this case."

The decision in Shirley did not address this argument, according to Tapia. He
therefore disagrees with the Court of Appeals' determination that Shirley is controlling in
this case. Instead, he continues to argue the reasoning and holding of Marino, 34 Kan.
App. 2d 857, applies.

Marino
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In Marino, a different panel of the Court of Appeals agreed with Marino's
argument that there can be no conviction for conspiracy unless an overt act is alleged and
that same overt act is proved. The complaint charging Marino with conspiracy to commit
aggravated battery merely alleged that "'an overt act in furtherance of the conspiracy was
committed . . . .'" Marino, 34 Kan. App. 2d at 860. Marino had not, however, moved to
arrest judgment in the district court.

The Marino court noted that usually if a complaint fails to allege an element and a
defendant fails to move to arrest judgment a defendant is required to establish one of the
three post-Hall factors to prevail on his or her defective-complaint claim. But the court
noted the unique allegation requirement in K.S.A. 21-3302(a) and determined that "[t]his
means that an overt act is an essential element of the crime of conspiracy." Marino, 34
Kan. App. 2d at 862. Yet, rather than treat the overt act allegation requirement in the
same manner as other elements by applying Hall, the court concluded Hall's analysis did
not apply. In reaching this conclusion, the Marino court found the Shirley decision
instructive, but it relied on a different portion of the Shirley decision—a discussion of a
jury instruction regarding the elements of conspiracy—rather than the Shirley court's
defective complaint discussion. Marino, 34 Kan. App. 2d at 862-63.

The jury instruction issue in Shirley was, according to the Shirley court itself,
moot because the court had reversed Shirley's conspiracy conviction based on the
defective complaint; nevertheless, the Shirley court chose to address the issue because "it
highlights some of the problems that can occur when the complaint fails to allege specific
facts of the overt act in furtherance of a conspiracy." Shirley, 277 Kan. at 665-66. In other
words, the discussion on which the Marino court relied was dicta.

The jury instruction in Shirley provided "'[t]hat the defendant or any party to the
agreement acted in furtherance of the agreement by an overt act.'" Shirley, 277 Kan. at
13

666. This language differed from language in the complaint, which indicated Shirley was
the one who committed the overt act. Shirley, 277 Kan. at 667. In discussing the propriety
of the jury instruction, the Shirley court stated:

"K.S.A. 21-3302(a) requires that an overt act in furtherance of the conspiracy be
alleged and proved. Because the statutory language joins allegation and proof with the
conjunction 'and,' both the factual allegation in the charging document and the proof of
the same factual allegation are required for a conviction. Thus, to find a defendant guilty,
the jury must find that the defendant or a coconspirator committed the overt act that was
alleged in the charging document. The charging document must specify both the act and
the actor." Shirley, 277 Kan. at 667.

Citing this discussion in Shirley, the Marino court concluded: "Shirley explains
that if the State is required to allege an essential element in the charging document, the
essential element should not be constructively amended or broadened by a later jury
instruction." Marino, 34 Kan. App. 2d at 863. Although not faced with a claim of
instructional error, the Marino court nevertheless concluded that this portion of the
Shirley decision supported the defendant's argument in which he essentially challenged
the sufficiency of the evidence. The Marino court concluded the legislature's intent was
for "the State to allege in the complaint or the indictment and to prove at trial that an
overt act in furtherance of the conspiracy has been committed." Marino, 34 Kan. App. 2d
at 864. Because the State failed to allege an overt act, the Marino court determined that
the evidence was insufficient for a rational factfinder to conclude that the defendant was
guilty beyond a reasonable doubt of conspiracy to commit aggravated battery. Marino, 34
Kan. App. 2d at 864.

Because it applied a sufficiency test, the Marino court concluded: "Simply stated,
based upon the complaint, the State failed to prove that an overt act had been committed
in the furtherance of the conspiracy. As a result, the Hall factors are inapplicable to this
case." Marino, 34 Kan. App. 2d at 864. The Marino court continued, however, stating
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that even if the post-Hall standard was applied, the complaint had to be dismissed. First,
the court determined that the lack of notice of the overt act in the complaint deprived the
defendant of due process of law. Second, because K.S.A. 21-3302(a) requires proof of the
commission of the overt act alleged in the complaint, the court concluded it was
impossible for the State to prove an overt act that was never alleged, which denied the
defendant a fair trial. Marino, 34 Kan. App. 2d at 864-66.

Tapia's Discussion of Marino

The Court of Appeals panel in the present case disagreed with the Marino court's
conclusions regarding the effect of the Shirley decision. The Tapia court noted:

"[The Marino court reached its holding] in spite of the fact that the Supreme Court in
Shirley applied K.S.A. 21-3302(a) to the State's complaint only as part of its pre-Hall
technical compliance analysis. The Marino court treated noncompliance with K.S.A. 21-
3302(a) as a cause for conducting a pre-Hall technical compliance analysis. The Supreme
Court in Shirley, on the other hand, treated noncompliance with K.S.A. 21-3302(a) as
grounds for reversal after it had determined that Hall did not apply." Tapia, 42 Kan. App.
2d at 620-21.

The Tapia court also factually distinguished Marino, noting that Marino's
coconspirator did not testify at trial and in that case the State sought to prove the
conspiracy by admitting a journal entry, while Tapia's coconspirators testified in person,
giving Tapia ample opportunity to test their credibility before the jury. Tapia, 42 Kan.
App. 2d at 622. Also, in Tapia, the district court had instructed the jury that the overt act
necessary to convict Tapia of conspiracy was "'entering a 2005 Chev[r]olet pickup and/or
a garage at 1226 N. Calhoun'" on the date of the burglary. Tapia, 42 Kan. App. 2d at 622.
Because Tapia was also charged with burglarizing the pickup truck and the garage, the
Tapia court concluded "this instruction did not impose any added burden on Tapia or
15

expand the scope of his criminal liability under the conspiracy charge." Tapia, 42 Kan.
App. 2d at 622.



Defective Complaint or Insufficiency

Our resolution of the question of whether the Tapia or Marino courts correctly
analyzed whether the failure to allege an overt act means there will be a failure of proof
requires us to interpret K.S.A. 21-3302(a). As in any situation in which a court is called
upon to interpret or construe statutory language, the touchstone is legislative intent. To
define legislative intent, a court begins by examining and interpreting the language the
legislature used. Only if that language is ambiguous does a court rely on any revealing
legislative history or background considerations that speak to legislative purpose, as well
as the effects of application of canons of statutory construction. When a statute is plain
and unambiguous, a court merely interprets the language as it appears; a court is not free
to speculate and cannot read into the statute language not readily found there. Stewart
Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188
(2012); Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 280, 241
P.3d 15 (2010); State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010).

K.S.A. 21-3302(a) clearly requires that an overt act be alleged and that an overt
act be proven. Nevertheless, there is no requirement that the State prove to the factfinder
that it had alleged the overt act. As with other crimes, the State is required to prove the
elements of the crime, which in the case of a conspiracy are (1) an agreement by two or
more persons to commit a crime and (2) an overt act by one or more of the coconspirators
in furtherance of the conspiracy (i.e., an agreement and overt act made for the purpose of
committing a crime). See State v. Hill, 252 Kan. 637, 641, 847 P.2d 1267 (1993). The
sufficiency of the evidence test "'"is whether, after review of all the evidence, viewed in
16

the light most favorable to the prosecution, the appellate court is convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt."'[Citation
omitted.]" State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).

Applying the sufficiency of the evidence standard to the facts of this case, it can
easily be concluded the jury could have found Tapia guilty beyond a reasonable doubt.
The State had presented sufficient evidence of an agreement to commit burglary and an
overt act in furtherance of the conspiracy agreement. The district court instructed the jury
regarding these elements and instructed the jury it had to find that Tapia or an accomplice
"'acted in furtherance of the agreement by entering a 2005 Chev[r]olet pickup and/or
garage at 1226 N. Calhoun.'" The jury was not—and need not have been—required to
find that the State had alleged this overt act in order to convict Tapia.

In an attempt to establish a failure of proof, Tapia constructs an argument that has
as its foundation the dicta in Shirley, 277 Kan. at 665-66, relating to a potential jury
instruction error. In this dicta, the Shirley court suggested that the allegation of the overt
act must be in the complaint and that the complaint cannot be constructively amended by
a jury instruction. Yet, this dicta raises an issue of due process, not sufficiency of the
evidence.

Moreover, there are reasons to reject the dicta in Shirley. The suggestion that
unique due process rules apply to the allegation of an overt act makes the allegation
requirement of K.S.A. 21-3302(a) sacrosanct. Certainly, as noted by the Shirley court, the
requirement that an overt act be alleged is unique in that it is the only criminal provision
that requires a specific factual allegation. Shirley, 277 Kan. at 665. Yet, the requirement
that an element be alleged is not unique and, even though there is a requirement that each
element be alleged and each element be proved, there is no precedent for arguing that the
failure to allege any other element means the evidence is insufficient. Rather, the various
procedural mechanisms and remedies discussed in Hall come into play. There is nothing
17

in K.S.A. 21-3302(a) that indicates these general rules of criminal procedure do not apply
when a conspiracy is alleged. We conclude that the mere addition of a unique
requirement that the factual circumstance of the overt act be alleged and the placement of
that requirement in the same statute as a requirement of proof do not convey a legislative
intent to create a unique sufficiency of the evidence analysis.

To illustrate the difference in treatment that Tapia's argument suggests, consider
what would happen if the State had failed to allege the other element of a conspiracy, the
agreement. See Hill, 252 Kan. at 641 (stating the two essential elements of conspiracy are
[1] an agreement and [2] an overt act). Although the agreement is not mentioned in
K.S.A. 21-3302(a), it must be alleged. See K.S.A. 22-3201(b) (requiring allegation of
"essential facts constituting the crime charged"); K.S.A. 22-2202(8) (defining
"complaint" to mean "a written statement under oath of the essential facts constituting a
crime"); Hall, 246 Kan. at 763-64 (explaining constitutional and statutory right to have
elements of crime alleged). Further, the existence of an agreement must be proved
beyond a reasonable doubt.

Yet, if an agreement had not been alleged, Tapia would not have been able to
argue, as he does regarding the overt act, that he was entitled to a determination that there
was insufficient evidence of his guilt. Rather, the defect in the complaint would have
been subject to a Hall analysis or, if the allegation were constructively amended through
a jury instruction, Tapia would have had to establish that this expansion impaired his
substantial due process rights. See State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15
(2009) ("A jury instruction on the elements of a crime that is broader than the complaint
charging the crime is erroneous. That error is excusable only where the substantial rights
of the defendant are not prejudiced.").

Making the failure to allege the factual circumstances of the overt act unassailable,
as Tapia suggests, would create an absurd dichotomy between an overt act allegation
18

defect and a defect in alleging any other element of a crime. It is a fundamental rule of
statutory interpretation that courts are to avoid absurd or unreasonable results. Kansas
One-Call System v. State, 294 Kan. 220, 233, 274 P.3d 625 (2012). Even though the
Shirley court was not considering the issue as argued by Tapia, the court reconciled this
potential dichotomy by applying the Hall analysis when determining the remedy for the
State's failure to allege an overt act as required by K.S.A. 21-3302(a). We likewise
conclude that the failure to allege an overt act raises due process concerns and is subject
to the general rules of criminal procedure, such as the Hall analysis, but does not require
an insufficiency of evidence analysis. We overrule the holding to the contrary in State v.
Marino, 34 Kan. App. 2d 857, 864, 126 P.3d 426, rev. denied 281 Kan. 1380 (2006), and
disapprove of any contrary dicta in State v. Shirley, 277 Kan. 659, 89 P.3d 649 (2003).

Simply put, regardless of the terms Tapia uses to couch his argument, as the
Shirley court concluded, the heart of such a claim is an allegation of a defective
complaint. See State v. McElroy, 281 Kan. 256, 261-62, 130 P.3d 100 (2006) (finding
that although defendant framed issue as a jury instruction violation, defendant was really
challenging the sufficiency of the charging document to confer jurisdiction; thus, Hall
applied). The State's failure to allege an overt act in furtherance of a conspiracy as
required by K.S.A. 21-3302(a) does not mean that the evidence against a defendant is
insufficient. Rather, the complaint is defective and subject to an analysis under State v.
Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990), overruled in part on other grounds by
Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).

Under Hall, because Tapia did not raise his current challenge before the district
court, the Court of Appeals correctly applied a commonsense interpretation of Tapia's
complaint. Tapia, 42 Kan. App. 2d at 621-22 (see Hall, 246 Kan. at 764-65). Tapia
presents no facts or arguments that address the Hall standards. Nor does Tapia raise any
objection to the constructive amendment through the jury instruction. As the Court of
19

Appeals stated, Tapia "places all his eggs in the Marino basket." Tapia, 42 Kan. App. 2d
at 621.

We conclude the Court of Appeals correctly ruled that the State's error in its
allegation of a specific overt act in furtherance of the conspiracy does not constitute
reversible error based on an argument of insufficient evidence.

ACCOMPLICE JURY INSTRUCTION

Tapia next argues that Garcia and Fraire were accomplices and, therefore, the
district court erred in rejecting his request for an accomplice jury instruction. The State
questions whether Garcia and Fraire were actually accomplices and maintains that any
error in not giving the instruction was harmless.

During the jury instruction conference, Tapia's counsel requested "a special
instruction on the testimony of co-conspirators that that [sic] should be considered with
suspicion." The district court responded, "There is no such thing," and stated that it would
not give any instruction regarding the testimony of coconspirators.

On appeal, Tapia claims he requested the instruction based on PIK Crim. 3d 52.18,
which states: "An accomplice witness is one who testifies that (he)(she) was involved in
the commission of the crime with which the defendant is charged. You should consider
with caution the testimony of an accomplice."

Standard of Review

The Court of Appeals applied the standard of review for when a district court
refuses to give a requested instruction. Tapia, 42 Kan. App. 2d at 623; see State v.
Edwards, 291 Kan. 532, 551, 243 P.3d 683 (2010) (view evidence in favor of party
20

requesting instruction; considering instructions as a whole to see if proper state law and if
jury could have been misled). We disagree that this is the appropriate standard of review,
however, because, even though defense counsel requested an instruction, the request was
for a coconspirator instruction, not an accomplice instruction. The district court's
response that "[t]here is no such thing" could be interpreted in one of two ways, either of
which lead us to conclude that defense counsel's request failed to properly object to the
failure to give the accomplice instruction.

Under the first interpretation, the district court's comment can be understood to
reflect the legal distinction between the terms "coconspirator" and "accomplice." There is
overlap between the meaning of the terms and the legal concepts attached to each;
accomplices can be coconspirators and vice versa, and both accomplice law and
conspiracy law involve special considerations regarding group crimes. But the terms are
not synonymous. Nor is the law applying to accomplices and coconspirators identical or
even fully parallel. See 16 Am. Jur. 2d, Conspiracy § 3. Because of these distinctions,
defense counsel's request for a "coconspirator" instruction was not precise, and the
district court may have recognized the distinctions and considered the defense request
literally.

The second interpretation is that the district court simply did not understand the
request because it was not stated "distinctly" as required by K.S.A. 22-3414(3), which
states in part:

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

21

While we would not go so far as to hold that a jury instruction request must be
made by referring to a pattern jury instruction by number in order to meet the
requirement that an objection be stated distinctly, in this case we conclude Tapia was
required to clarify the court's apparent misunderstanding of his request in order to make
his objection distinct. Once it was clear the district court did not understand the defense
request for an accomplice instruction or did not understand that a pattern instruction was
being requested, Tapia needed to clarify the request and refer the court to the pattern
instruction.

As we have explained, "it is important to remember that the purpose of requiring
an objection is to allow the district court to correct an error, if one occurred. [Citation
omitted.]" State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied
130 S. Ct. 3410 (2010). In Ellmaker, the defendant objected to an instruction on one
ground but asserted a different argument on appeal. Under those circumstances, even
though the defendant had objected to the instruction, we concluded the defendant failed
to comply with K.S.A. 22-3414(3). Ellmaker, 289 Kan. at 1139. Likewise, here, Tapia's
request for an instruction can be interpreted as asking for a different instruction from the
one now being argued or, alternatively, as being so indistinct as to not clearly
communicate the request.

The implications of the failure to comply with K.S.A. 22-3414(3) were recently
clarified in State v. Williams, 295 Kan. ___, ___P.3d ___ (No. 102,615, filed September
21, 2012). We first explained that a jury instruction issue, like all issues on appeal, is
subject to a three-step process:

"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
22

assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." Williams, 295 Kan. ___, Syl. ¶ 1.

We then held:

"K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on
appeal. It provides that no party may assign as error a district court's giving or failure to
give a particular jury instruction, including a lesser included crime instruction, unless: (a)
that 2 party objects before the jury retires to consider its verdict, stating distinctly the
matter to which the party objects and the grounds for objection; or (b) the instruction or
the failure to give the instruction is clearly erroneous. If an instruction is clearly
erroneous, appellate review is not predicated upon an objection in the district court.
Williams, 295 Kan. ___, Syl. ¶ 3.

The determination of whether the instruction is clearly erroneous employs a two-
step process. First, "the reviewing court must . . . determine whether there was any error
at all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record." Williams, 295 Kan. ___, Syl. ¶ 4. The second step applies only if it is
determined there was error. Under the second step, "the court assesses whether it is
firmly convinced that the jury would have reached a different verdict had the instruction
error not occurred. The party claiming a clearly erroneous instruction maintains the
burden to establish the degree of prejudice necessary for reversal." Williams, 295 Kan.
___, Syl. ¶ 5.

The Accomplice Instruction—Legally and Factually Appropriate

We first consider the step of whether an accomplice instruction was legally and
factually appropriate. In past cases, despite the differences between an accomplice and a
coconspirator, we have approved the use of the pattern accomplice instruction in
conspiracy trials. And we have concluded that "[w]hen an accomplice testifies, and
23

whether that testimony is corroborated or not, the better practice is for the trial court to
give a cautionary instruction. If the instruction is requested and is not given, the result
may be error." State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981); see PIK Crim. 3d
52.18, Notes on Use (better practice is to give this cautionary instruction regardless of
whether there is corroborating evidence, as long as the accomplice is not also a
codefendant in the trial).

Whether the instruction should be given naturally depends on whether the witness
is an accomplice. State v. Simmons, 282 Kan. 728, 734, 148 P.3d 525 (2006). In Simmons
we explained that "'[a] person is an "accomplice" of another in committing a crime if,
with the intent to promote or facilitate the commission of the crime, he solicits, requests,
or commands the other person to commit it, or aids the other person in planning or
committing it.'" Simmons, 282 Kan. at 737 (quoting 1 Torcia, Wharton's Criminal Law §
38, p. 220 [15th ed. 1993]). Garcia's admitted role as the driver and lookout clearly places
him in the role of accomplice, and the evidence from Garcia's initial statement in which
he claimed that Fraire participated in the burglary of the garage supports the conclusion
Fraire was an accomplice as well. We, therefore, conclude the accomplice instruction was
legally and factually appropriate under the facts of this case.

Harmless Error

In past cases, in determining whether the failure to give an accomplice instruction
was reversible error, we have examined the extent and importance of an accomplice's
testimony, as well as any corroborating testimony. State v. DePriest, 258 Kan. 596, 605,
907 P.2d 868 (1995); Moore, 229 Kan. at 80-81. We have also held:

"[N]o reversible error occurs due to a trial court's failure to give a cautionary accomplice
witness instruction if a witness' testimony is corroborated by other evidence and the
24

witness' testimony does not provide the sole basis for a resulting conviction. [Citations
omitted.] . . . .
"Further, a failure to provide the jury with the cautionary accomplice witness
instruction of PIK Crim. 3d 52.18 is not error when the defendant's guilt is plain or when
the jury is cautioned about the weight to be accorded testimonial evidence in other
instructions. [Citation omitted.]" Simmons, 282 Kan. at 740.

In this case, while the accomplices' testimony, specifically Garcia's, was key to the
State's case, defense counsel effectively called into question both Garcia's and Fraire's
veracity. Defense counsel elicited that Garcia and Fraire were initially charged with the
same offenses as Tapia but were granted diversions. Defense counsel extensively cross-
examined Garcia on the inconsistency between his statement to law enforcement officers,
in which he incriminated both Tapia and Fraire as burglars, and his trial testimony, in
which he stated that only Tapia exited the vehicle. In response, Garcia admitted that his
statement to officers was "untruthful." Both Garcia's and Fraire's testimony was
corroborated by testimony that the property stolen from the pickup truck and Mondgold's
garage were found in the vehicle in which Tapia was riding and in Tapia's pockets.
Further, Tapia was the one identified as wearing clothes matching those worn by the
burglar, and Parr saw him wearing baseball gloves. Also, the district court provided the
jury with the general instruction on witness credibility. Finally, there was overwhelming
evidence of Tapia's guilt.

Considered in this light, we are not firmly convinced that the cautionary
accomplice instruction would have made a difference in the jury's verdict.

APPRENDI AND IVORY—USE OF CRIMINAL HISTORY

Tapia also contends the use of his prior convictions in his criminal history score to
enhance his sentences without requiring the history to be included in the complaint and
proved to a jury beyond a reasonable doubt violated his constitutional rights under
25

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Tapia
acknowledges that this court has previously rejected this argument. See, e.g., State v.
Bennington, 293 Kan. 503, 534, 264 P.3d 440 (2011) (citing State v. Ivory, 273 Kan. 44,
46-48, 41 P.3d 781 [2002]). The Court of Appeals correctly rejected Tapia's contention.
Tapia, 42 Kan. App. 2d at 623.

AGGRAVATED TERMS IN GRID BOXES

Finally, Tapia argues his constitutional rights were violated when the district court
sentenced him to the aggravated terms of incarceration within the applicable sentencing
grid boxes for each of his convictions. Tapia acknowledges a line of decisions in which
this court has rejected this argument, but he raises it to preserve federal review. He does
not offer a persuasive reason for us to abandon our prior decisions, which require us to
hold that this court is without jurisdiction to consider this issue because Tapia received
presumptive sentences. See K.S.A. 21-4721(c)(1); State v. Bogguess, 293 Kan. 743, 755,
268 P.3d 481 (2012); State v. Johnson, 286 Kan. 824, 840-52, 190 P.3d 207 (2008); see
also State v. Huerta, 291 Kan. 831, 839-40, 247 P.3d 1043 (2011) (reaffirming that
appellate court does not review claims on direct appeal that defendant's presumptive
sentence has a constitutionally based infirmity).

Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.

MORITZ, J., not participating.
THOMAS H. SACHSE, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Sachse was appointed to hear case No. 100,596
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.
26


* * *

JOHNSON, J., dissenting: I dissent for two reasons: (1) I believe the statute
defining conspiracy, K.S.A. 21-3302(a), does create a sufficiency of the evidence
problem when the complaint fails to allege any overt act; and (2) I continue to be baffled
by this court's stubborn adherence to the jurisdiction-by-waiver rule that was
manufactured from whole cloth in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990),
overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40
(2003).

Like the majority, I will start by accepting the premise that the complaint in this
case was defective because it failed to meet the K.S.A. 21-3302(a) requirement that the
overt act in furtherance of the conspiracy must be alleged in the charging document.
Simply put, the complaint in this case was missing a necessary element of the crime.

With respect to the question of the evidence sufficiency, I also agree with the
majority's assertion that "K.S.A. 21-3302(a) clearly requires that an overt act be alleged
and that an overt act be proven. Nevertheless, there is no requirement that the State prove
to the factfinder that it had alleged the overt act." State v. Tapia, (No. 100,596, this day
decided) slip op. at 15. Obviously, the jury need not be concerned with what the
prosecutor put into the charging document, because the sufficiency of a complaint, like
the sufficiency of the evidence, is a legal question to be determined by a judge, not a jury.

But the majority's disconnect, in my view, is in considering the elements of
conspiracy to be simply an agreement and an overt act in furtherance of the conspiracy.
Thereafter, the majority proceeds as if there is no legal connection whatsoever between
the overt act alleged and the overt act proven. The suggestion is that if evidence exists
from which the jury could reasonably find that the defendant or a coconspirator
27

committed any overt act, then the evidence is sufficient to support the conviction. Yet the
statute does not permit a person to be convicted of a conspiracy unless "an overt act in
furtherance of such conspiracy is alleged and proved to have been committed by such
person or by a co-conspirator." (Emphasis added.) K.S.A. 21-3302(a). I cannot read that
language as permitting the State to allege one overt act [or no overt act] and then prove
another overt act. To the contrary, in order to satisfy the majority's second element—an
overt act—the State must prove that the defendant or a coconspirator committed the
specific overt act that the State's charging document alleged was committed. Cf. State v.
Chaffee, 36 Kan. App. 2d 132, 142, 137 P.3d 1070 (2006) (State cannot charge
aggravating kidnapping to facilitate murder and then convict defendant of kidnapping to
facilitate some other crime not identified in information).

Here, the State failed to "allege and prove" an overt act in furtherance of the
charged conspiracy because it failed to allege an overt act. Obviously, there can never be
sufficient evidence to prove an alleged overt act, as clearly required by K.S.A. 21-
3302(a), where there has been a failure to allege any overt act. In other words, one cannot
prove that which does not exist. The fact that the State may have presented evidence from
which a jury could rationally find the existence of overt acts which the State did not
allege is of no consequence here. The State failed to present sufficient evidence to
support the "allege and prove" overt act element which was statutorily necessary for a
conspiracy conviction. I would reverse based upon an insufficiency of the evidence of the
crime of conspiracy, as charged.

Figuratively mounting my donkey and taking up my lance, I charge toward the
windmill disguised as the Hall rule. As the majority describes, under the "pre-Hall"
standard, if a charging document "does not set out the essential elements of the crime, it
is fatally defective and the conviction must be reversed for lack of jurisdiction. [Citation
omitted.]' Shirley, 277 Kan. at 661-62." (Emphasis added.) Tapia, slip op. at 9. In other
28

words, if a complaint is missing essential elements of the charged crime, the district court
does not have subject matter jurisdiction to convict the defendant of that crime.

Yet Hall established a new rule for complaint challenges where the defendant had
failed to challenge the defective complaint in the district court through a motion for arrest
of judgment. Under that new rule, the defendant must establish certain prejudice,
impairment, or limitation of constitutional rights in order to obtain a conviction reversal
for a defective complaint. See State v. Portillo, 294 Kan. 242, 254-55, 274 P.3d 640
(2012). In essence, by failing to file a motion for arrest of judgment in the district court, a
defendant waives the jurisdictional claim arising from a charging document with a
missing element. As I shared in my dissent in State v. Inkelaar, 293 Kan. 414, 444, 264
P.3d 81 (2011):

"I cannot square that approach with the rather fundamental principle that subject matter
jurisdiction may be raised at any time, whether for the first time on appeal or even on the
appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
Moreover, a party's failure to challenge a district court's jurisdiction cannot create subject
matter jurisdiction where it did not already exist. State v. Hoffman, 45 Kan. App. 2d 272,
275, 246 P.3d 992 (2011) (parties cannot confer subject matter jurisdiction by consent,
waiver, or estoppel; a failure to object to the court's jurisdiction does not invest the court
with the requisite subject matter jurisdiction)."

The majority's continued use of Hall's court-made exception to a jurisdictional rule
is particularly curious, given that the author and most of the members of this majority
recently voted unanimously to "overrule Johnson v. American Cyanamid Co., 243 Kan.
291, 758 P.2d 206 (1988), and Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988),
to the extent they authorize an exception to a jurisdictional rule." Board of Sedgwick
County Comm'rs v. City of Park City, 293 Kan. 107, 120, 260 P.3d 387 (2011). In that
Park City case, we definitively declared that "'this Court has no authority to create
equitable exceptions to jurisdictional requirements.'" 293 Kan. at 120 (quoting Bowles v.
29

Russell, 551 U.S. 205, 214, 127 S. Ct. 2360, 168 L. Ed. 2d 96 [2007]). Yet the majority
clings to Hall's jurisdictional exception under the guise that Tapia has not specifically
asked us to jettison it. I would submit that the Hall exception to the jurisdictional defect
of elements missing from a charging document "deserves a proper burial," and that "[w]e
should administer last rites with this opinion." State v. Bryant, 272 Kan. 1204, 1210, 38
P.3d 661 (2002) (Six, J., concurring; referring to res gestae as an independent evidentiary
concept).

BEIER, J., joins the foregoing dissenting opinion.