State v. Arriaga

1

NOT DESIGNATED FOR PUBLICATION

No. 112,831

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSE M. ARRIAGA,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed March 11, 2016.
Affirmed in part and dismissed in part.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.

Per Curiam: Jose M. Arriaga appeals his conviction for aggravated assault in
Sedgwick County District Court. Arriaga contends that the district court erred in refusing
to suppress his statements to police in violation of Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), that the court erred in refusing to provide the jury
with a multiple-acts unanimity instruction, and that the imposition of the aggravated
penalty within the applicable sentencing grid violated his right to due process as stated in
Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007). We
affirm in part and dismiss in part.
2

FACTUAL AND PROCEDURAL BACKGROUND

Arriaga and Ineida Samano had a tumultuous, 4-year relationship. At times, they
lived together, holding themselves out to the community as a married couple. In March
2013, they had separated, and Samano had moved back into her mother's house.
Samano's mother lived down the street from Arriaga.

On the evening of March 21, 2013, Samano made plans with a friend, Wendy
Perez, to look at some clothes at Perez' house. Perez and a male friend, known only as
Ezekial, stopped by Samano's house to pick her up. Ezekial was driving his truck.

Earlier in the evening, Arriaga had sent a text message to Samano asking if he
could take her out for dinner. Samano had told him that she had already eaten and
planned to stay at her mother's house. Suspecting that Samano was seeing another man,
Arriaga picked up some food and ate it in his car outside his home so that he could watch
Samano's residence.

When Samano left the house and got into Ezekial's truck, she saw Arriaga
watching her. As they drove away, Samano instructed Ezekial to turn down a side street,
hoping to lose Arriaga. Arriaga followed and caught up with them as they were delayed
by traffic at a controlled intersection. As Ezekial pulled his truck into the intersection
after stopping at the stop sign, Arriaga lightly bumped the truck with his car. The
occupants of the truck thought that Arriaga simply did not stop his car quickly enough
and continued towards Perez' house.

Arriaga continued to follow and to bump Ezekial's truck, worrying its passengers.
He also sent text messages to Samano, telling her to get out of the truck. After Ezekial
turned onto westbound Kellogg Avenue, Arriaga eventually pulled ahead of the truck.
Both vehicles were traveling under the posted speed limit. Because Arriaga was ahead of
3

them, Ezekial decided to take the Hillside exit, again hoping to lose Arriaga. Realizing
that the truck had taken the exit, Arriaga pulled his car off the road and crossed some
grass to the exit in order to position himself once again behind Ezekial's truck.

Frightened, Samano called the police as Ezekial turned around on Hillside and
returned to Kellogg. He drove the truck east on Kellogg, followed by Arriaga. Fed up
with the situation, Ezekial finally pulled his truck onto the shoulder and climbed out of
the truck to confront Arriaga. Arriaga pulled just ahead of the truck a few feet. Rather
than getting out of his car, however, Arriaga reversed his car into the truck and then
drove away. When Arriaga backed into the truck, the occupants, Samano and Perez, were
afraid they would be injured. After Arriaga left, Ezekial returned to the truck and drove to
a nearby QuikTrip store, where they met the police. The police asked the occupants of the
truck to go to a nearby police station to file a report, and they complied.

Arriaga was interviewed by police after his arrest on March 22. After asking some
personal and background questions, the detective read Arriaga his Miranda rights while
Arriaga followed along on a written form, which he initialed as the detective informed
him of his rights. Afterwards, Arriaga consented to speak with the detective and provided
some inculpatory statements.

The State charged Arriaga with one count of aggravated assault. Arriaga waived a
preliminary examination. Following the State's motion for a Jackson v. Denno hearing to
determine the voluntariness of Arriaga's incriminating statements, see Jackson v. Denno,
378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), Arriaga filed three motions
seeking to suppress his statements to police on various grounds.

On December 16, 2013, the first day of trial, the district court held a hearing on
the motions. The court ultimately concluded that the statements were voluntary and that
the pre-Miranda statements were not the product of a custodial interrogation. The district
4

court denied the motions to suppress. The jury heard evidence on December 17 but
adjourned for the evening before beginning deliberations. The following morning, the
jury convicted Arriaga of aggravated assault. Answering a special verdict question, the
jury found that the crime involved domestic violence.

On January 30, 2014, the district court sentenced Arriaga to an underlying prison
term of 14 months, the aggravated penalty within the applicable sentencing grid based on
Arriaga's criminal history score of H and the severity level 7 assigned to aggravated
assault. The district court suspended the sentence in favor of the presumptive 24-month
probation term. The following day, Arriaga filed his notice of appeal.

DID THE DISTRICT COURT ERR IN FAILING TO SUPPRESS
ARRIAGA'S STATEMENT TO POLICE?

Arriaga first contends that the district court erred in refusing to suppress both his
pre-Miranda statements to police as products of a custodial interrogation and his post-
Miranda statements as products of the earlier tainted statements. As Arriaga notes, this
court reviews suppression rulings under a bifurcated standard. The reviewing court will
adopt the factual findings by the district court that are supported by substantial competent
evidence, but the ultimate legal conclusion regarding suppression is subject to plenary
review. See State v. Garcia, 297 Kan. 182, 186, 301 P.3d 658 (2013); State v. Gilliland,
294 Kan. 519, 545, 276 P.3d 165 (2012), cert. denied 133 S. Ct. 1274 (2013). Although
Arriaga's interview with the police was recorded and the recording is incorporated into
the record on appeal, the court's deference to factual findings by the district court does
not change. See Garcia, 297 Kan. at 187 ("[T]his court has routinely utilized its
bifurcated standard of review in suppression cases, even where the statements at issue
were videotaped.").


5

Pre-Miranda Statements

Arriaga first argues that he was subjected to custodial interrogation before he was
warned of his constitutional rights in violation of Miranda. Law enforcement officers are
not required to provide every person they question Miranda warnings before conducting
the questioning but only to persons subject to custodial interrogation. Miranda, 384 U.S.
at 444; State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012).

As stated in Miranda, "custody"—for purposes of triggering the procedural
safeguard of informing a person of their constitutional Fifth and Sixth Amendment
rights—occurs when an individual has been formally arrested or otherwise been deprived
of freedom of action in a significant manner. 384 U.S. at 444, 478-79. The ultimate
inquiry is whether a reasonable person in the position of the defendant would have felt
free to terminate the interrogation and disengage himself or herself from the encounter.
See Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 128 L. Ed. 2d 293
(1994) ("Our decisions make clear that the initial determination of custody depends on
the objective circumstances of the interrogation, not on the subjective views harbored by
either the interrogating officer or the person being questioned."); Warrior, 294 Kan. at
497.

Though Kansas courts generally consider eight factors in determining whether an
interrogation was custodial or merely investigative, see Warrior, 294 Kan. at 496, it is
unnecessary to consider the factors in this case because Arriaga was clearly in custody
within the meaning of Miranda. He had been arrested and was handcuffed to the table in
the interview room both before the interview began and after it ended. Detective Naldoza
admitted that Arriaga was in custody and was not free to leave.

The suppression ruling regarding Arriaga's pre-Miranda statements, therefore,
hinges on whether the questions asked of him before he was given the warnings
6

constituted interrogation. As used in the context of Miranda, an interrogation occurs
"whenever a person in custody is subjected to either express questioning or its functional
equivalent in the form of 'any words or actions on the part of the police . . . that the police
should know are reasonably likely to elicit an incriminating response from the suspect.'"
State v. Garcia, 233 Kan. 589, 603, 664 P.2d 1343 (1983) (quoting Rhode Island v. Innis,
446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 [1980]).

In Garcia, a suspect was provided with Miranda warnings, and he invoked his
right to counsel. Nevertheless, the detective asked the suspect to answer questions
regarding personal background information. Reviewing existing caselaw on the subject,
the Kansas Supreme Court determined that the collection of routine personal biographical
information from a suspect does not constitute an interrogation within the meaning of
Miranda:

"The information obtained from the appellant to complete the personal history
sheet following his request for counsel did not violate his rights against self-incrimination
and right to counsel under Miranda. The personal background questions did not
constitute an 'interrogation' within the meaning of Miranda and Innis. The trial court did
not err in admitting the personal history sheet and Detective Milham's testimony into
evidence." Garcia, 233 Kan. at 607.

Important to the resolution of the case was the court's finding that none of the
personal biographical and background questions related to the crime charged or the
suspect's involvement in that crime. The court admitted that the booking questions
requested a description of Garcia's vehicle—which matched the description of a vehicle
seen leaving the victim's house—but found that even this question did not constitute
interrogation because the description of the car was not incriminating due to the
undisputed nature of the defendant's identity as the perpetrator of the crime and because
the questions were not asked of Garcia to obtain an incriminating response. 233 Kan. at
606-07.
7

Despite the intervening United States Supreme Court decision of Pennsylvania v.
Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), no published Kansas
appellate decision has revisited Garcia. See State v. Appleby, 289 Kan. 1017, 1051-52,
221 P.3d 525 (2009) (acknowledging Muniz without mentioning Garcia); State v.
Thompkins, 271 Kan. 324, 333-34, 21 P.3d 997 (2001) (citing Garcia with approval in
determining whether a prosecutor's comments on a suspect's refusal to answer personal
background questions constituted an impermissible comment on the suspect's right to
remain silent); State v. Carter, No. 95,576, 2007 WL 959617, at *5 (Kan. App. 2007)
(unpublished opinion) (stating that the holding in Garcia is consistent with the holding of
Muniz in finding an exception to custodial interrogation for routine booking questions),
rev. denied 284 Kan. 947 (2007); State v. Jackson, No. 94,440, 2006 WL 2337231, at *6
(Kan. App. 2006) (citing Garcia for the proposition that routine background questions
did not constitute interrogation within the meaning of Miranda without discussing
Muniz), rev. denied 282 Kan. 794 (2006).

Muniz was a plurality decision. With respect to Part III-C of the court's opinion—
holding that routine booking questions involving personal, identifying information
constituted an exception to Miranda—only four Justices joined in the opinion: Brennan,
O'Connor, Scalia, and Kennedy. Muniz, 496 U.S. at 600-02. Four others—Chief Justice
Rehnquist, and Justices White, Blackmun, and Stevens— concluded that none of the
challenged questions required suppression because the responses they elicited were
nontestimonial, and the Court was not required to consider whether the questions fell into
an exception to Miranda. Muniz, 496 U.S. at 606-08. Therefore, the Court reached a
majority decision only in the result. Accordingly, the statement by this court in Carter
might more accurately state that the reasoning in Garcia is not inconsistent with (rather
than consistent with) the reasoning of Muniz. Since Garcia does not conflict with any
contrary authority of the United States Supreme Court, this court remains bound to follow
Garcia. See State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976) (recognizing that the
reasoning in its prior decision had been rejected and overruled by the United States
8

Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 [1976]);
State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128 (Court of Appeals bound to
follow Kansas Supreme Court precedent), rev. denied 302 Kan. ___ (September 14,
2015).

Applying Garcia, however, does not necessarily resolve the issue of what
constitutes personal background information for purposes of a "routine booking
information" exception. See Muniz, 496 U.S. at 601-02. In Muniz, the four Justices who
relied on the existence of a "routine booking information" exception to Miranda stated:

"We disagree with the Commonwealth's contention that Officer Hosterman's first
seven questions regarding Muniz's name, address, height, weight, eye color, date of birth,
and current age do not qualify as custodial interrogation as we defined the term in Innis,
supra, merely because the questions were not intended to elicit information for
investigatory purposes. As explained above, the Innis test focuses primarily upon 'the
perspective of the suspect.' [Citation omitted.] We agree with amicus United States,
however, that Muniz's answers to these first seven questions are nonetheless admissible
because the questions fall within a 'routine booking question' exception which exempts
from Miranda's coverage questions to secure the '"biographical data necessary to
complete booking or pretrial services."' [Citations omitted.] The state court found that the
first seven questions were 'requested for record-keeping purposes only.' [citation
omitted], and therefore the questions appear reasonably related to the police's
administrative concerns. In this context, therefore, the first seven questions asked at the
booking center fall outside the protections of Miranda and the answers thereto need not
be suppressed." Muniz, 496 U.S. at 601-02.

Clearly, if an exception to custodial interrogation is to be extended to routine
booking questions, the pertinent inquiry cannot be whether the questions elicit
incriminating responses. The analysis in Part III-C of the Muniz opinion did not focus on
whether the questions for personal information were reasonably likely to elicit an
incriminating response. Rather, the portion of the Court that recognized an exception to
9

Miranda for routine booking questions examined law enforcement's need for the
questions, i.e., were the questions designed to provide law enforcement with information
helpful to their investigation of a crime or merely helpful with the administration of
processing and identifying the individual?

When the pre-Miranda questions in the present case are analyzed in this context, it
is clear that the majority of the questions fall outside the scope of custodial interrogation
within the meaning of Miranda. When Detective Naldoza first entered the room to begin
the interrogation, Arriaga asked about going home. The detective responded that it
remained to be seen whether Arriaga would go home or go to jail. Arriaga then indicated
that he would rather stay in the interview room than go to jail, indicating that he had been
in jail previously. Because the incriminating inference was volunteered by Arriaga and
not a response to anything the detective said or did, the comment did not violate
Miranda. See State v. Warledo, 286 Kan. 927, 936, 190 P.3d 937 (2008). Nevertheless,
this portion of the interview was redacted from the video shown to the jury at trial and
could not have prejudiced Arriaga's trial.

Detective Naldoza then began a series of questions similar to the questions
approved in Muniz and Garcia. All of these questions were related to administrative
responsibilities of the detective and included Arriaga's name and its correct spelling, his
age and birthdate, his address, and his birthplace. Arriaga's response to the question about
where he was born was also redacted from the video shown to the jury, not because it
violated Miranda but because the potential for prejudice outweighed the probative value
of the information. The fact that Arriaga was a noncitizen had no bearing whatsoever in
the jury's determination whether he committed aggravated assault.

Similarly, Naldoza's questions about Arriaga's marital status properly fall within
the parameters of administrative information. While the information might have been
somewhat incriminating under the facts of this case, administrative needs for contact
10

information arguably fall within the parameters of the type of personal identifying
information exempted from Miranda. In addition, the questions regarding Arriaga's
marital status and the questions regarding his car are of the same nature of the questions
asked the suspect in Garcia. These questions were not intended to elicit an incriminating
response related to the crime under investigation and did not provide incriminating
information in the sense that the information revealed Arriaga's thought processes rather
than information related to his status. See Garcia, 233 Kan. at 606-07. Furthermore, there
was no controversy at trial concerning the type of car Arriaga drove or the relationship
between Arriaga and Samano.

Admittedly, Naldoza's conversation with Arriaga about his prior illegal drug use
constituted incriminating evidence outside the realm of legitimate administrative
questioning. Although the law only prohibits the possession of illegal drugs, not the
ingestion of those drugs, a person cannot ingest drugs without first possessing them. But,
an admission to the general use of drugs might supply relevant incriminating evidence in
a prosecution for the current possession of drugs or other drug-related offenses. The
questions serve no useful administrative function, unlike a question about whether a
suspect is currently under the influence of any drug, which goes to the suspect's ability to
understand his or her rights. Therefore, the questions exceeded the scope of legitimate
personal information related to administrative functions of law enforcement.

Similarly, Naldoza's questions about Arriaga's criminal record were also improper.
They serve no useful administrative purpose. This is in contrast to questions attempting to
ascertain Naldoza's current probation or postrelease supervision status, which might serve
a legitimate administrative function in enabling the officers to contact court services.
Questions seeking general information about a suspect's criminal past serve no legitimate
administrative function.

11

As a result, the general questions about Arriaga's drug use and prior convictions
constituted impermissible custodial interrogation before Arriaga received his Miranda
warnings and should have been suppressed. But, in this case, the impermissible questions
and their responses were elicited toward the end of the pre-Miranda portion of the
interview. The questions and Arriaga's responses were not presented to the jury. They
were redacted from the version of the video recording shown to the jury. Consequently,
Arriaga has not demonstrated error that adversely affected his trial.

Post-Miranda Statements

Arriaga also raises two claims for suppressing his post-Miranda statements to
Naldoza. First, he contends that the post-Miranda statements should have been
suppressed because they were tainted by the pre-Miranda custodial interrogation. Second,
he contends that Naldoza's statement regarding the persons to whom the Miranda
protections extended confused him and led him to believe that the protections did not
extend to noncitizens.

Law enforcement officers may not subvert the protections of Miranda by
conducting an impermissible custodial interrogation until they obtain an admission, stop
the questioning to provide the suspect with a warning of his or her rights, and then
continue the questioning after the suspect waives those rights. See Missouri v. Seibert,
542 U.S. 600, 617, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). Incriminating statements
made after Miranda warnings are not inevitably tainted by prior unwarned statements.
See Oregon v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985)
("[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the
mere fact that a suspect has made an unwarned admission does not warrant a presumption
of compulsion. A subsequent administration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily should suffice to remove the
12

conditions that precluded admission of the earlier statement."); State v. Lewis, 299 Kan.
828, 838-39, 326 P.3d 387 (2014) (applying Elstad and Seibert).

Whether statements made following Miranda warnings delivered during a
custodial interrogation are admissible ultimately hinge upon the voluntary nature of the
statements under the totality of the circumstances. See State v. Hebert, 277 Kan. 61, 76,
82 P.3d 470 (2004). To assist with this determination, the United States Supreme Court
has identified a nonexclusive list of factors a court should consider in determining
whether Miranda warnings delivered during custodial interrogation tainted any warned
confessions.

"The contrast between Elstad and this case reveals a series of relevant facts that
bear on whether Miranda warnings delivered midstream could be effective enough to
accomplish their object: the completeness and detail of the questions and answers in the
first round of interrogation, the overlapping content of the two statements, the timing and
setting of the first and the second, the continuity of police personnel, and the degree to
which the interrogator's questions treated the second round as continuous with the first."
Seibert, 542 U.S. at 615.

Under the circumstances presented in this case, the Miranda warnings afforded
Arriaga during the interview were sufficient to purge any taint associated with any pre-
Miranda custodial interrogation. First, as previously noted, the few questions that did not
constitute permissible "routine booking questions" related to actions completely isolated
from the charges discussed post-Miranda. The questions dealt with Arriaga's prior
unlawful conduct, not the conduct under investigation. Second, Arriaga never provided
an admission related to the aggravated assault charges during the initial round of
questioning. Third, while Naldoza continued the interview without an identifiable break,
he did signify a distinction between the first round of questions and the second by
providing the Miranda warnings on a printed sheet, removing Arriaga's handcuffs, and
focusing the discussion on the criminal allegations against Arriaga in this case. Under the
13

totality of the circumstances, a reasonable person in Arriaga's position would not have
felt compelled to provide admissions regarding the aggravated assault charges based
upon his admissions to prior crimes and drug use in the pre-Miranda portion of the
interview. In all events, our determination that the information provided by Arriaga prior
to receiving his Miranda warning did not violate his rights precludes the finding that his
post-Miranda statements were tainted by the pre-Miranda questioning. The district court
did not err in refusing to suppress Arriaga's post-Miranda admissions.

Arriaga suggests that his post-Miranda statements were involuntary because he
was confused by Naldoza's statement that the constitutional protections extended to
citizens of the United States, to which class Arriaga knew he did not belong. During the
suppression hearing, Arriaga testified to his belief that the rights did not apply to him.
The district court rejected Arriaga's testimony, specifically finding that Naldoza's
statements about the constitutional protections extended to citizens did not create a
coercive environment for Arriaga under the totality of the circumstances.

In assessing whether statements made by a suspect to a law enforcement officer
were the product of a free and independent will or of police coercion, the district court
examines the totality of the circumstances including, but not limited to, the suspect's
mental condition; the manner and duration of the interrogation; the suspect's ability at his
or her request to communicate with the outside world; the suspect's age, intellect, and
background; the fairness of the officers conducting the interrogation; and the suspect's
fluency in English. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). Factors
demonstrating coercion are not to be weighed against factors suggesting a lack of
coercion. But, the circumstances may dilute the presence of a particular factor that, in
another context, might render the statements involuntary. The ultimate inquiry is whether
the relevant circumstances, when considered together, lead to a conclusion that the
suspect's will was overborne and his or her statements were not a free and voluntary act.
Randolph, 297 Kan. at 326.
14

In this appeal, Arriaga does not point to any factor suggesting a coercive
environment during his interrogation, other than Naldoza's characterization of the persons
to whom the Miranda protections extended. The record reveals nothing to suggest that
Arriaga's mental state at the time of the interview was somehow impaired. He claimed he
did not suffer from a mental or health condition or from the use of illegal or prescription
drugs or alcohol. He indicated that he had slept a full 8 hours the preceding night. All of
his responses to Naldoza's questions were cogent and appropriate. He asked several
questions of Naldoza, demonstrating mental engagement in the conversation. The post-
Miranda portion of the interrogation, which lasted approximately 30 minutes, was
extremely relaxed. Naldoza essentially permitted Arriaga to explain his version of the
event, only occasionally asking for clarification on some point. Naldoza never denied a
request by Arriaga to make a phone call, take a break, or obtain food or water. Naldoza
never suggested that Arriaga needed to talk to him and indicated that the decision was
entirely Arriaga's. While English was clearly not Arriaga's first language, his command
of English was completely fluent. He never demonstrated difficulty in choosing his own
words or understanding Naldoza's.

Accordingly, the only coercive element present during Arriaga's interrogation was
Naldoza's suggestion that the constitutional protections contained in the Miranda
warnings extended only to citizens. When placed in the context in which these statements
were made, they cannot objectively be deemed coercive. In presenting Arriaga the
Miranda warnings form, Naldoza said:

"Jose, this piece of paper has printed on it your constitutional protections. And these are
protections afforded to you and afforded to every citizen of the United States by the
Constitution to ensure that you're protected. It ensures that you're protected from being
abused, protected from being tortured, protected from being forced into doing something
or saying something you don't want to do or something you don't want to say. [It]
protect[s] you from being tricked into doing something or saying something that you
15

don't want to do or say. It also protects me, too. I don't want to be—I don't want people to
say that I tried to do those things to you, 'cause its against the law."

Prior to giving the Miranda warning, Naldoza clearly and repeatedly told Arriaga
that he had rights which protected him from "doing something or saying something you
don't want to do or something you don't want to say." Prior to the actual review of the
Miranda rights form, Naldoza told Ariaga that he would read each sentence of the form
to Arriaga and ask him if he understood what he had been told. If so, Arriaga was
instructed to place his initials next to the sentence Naldoza had just read. The first
sentence Naldoza read to Arriaga stated: "Before we ask you any questions, you must
understand your rights." Arriaga indicated that he understood. Naldoza proceeded to read
the remaining rights, and Arriaga asked what it meant that anything he said could be used
against him in court. After Naldoza explained that if Arriaga told him something during
the interview it could be used against Arriaga in a legal proceeding, Arriaga indicated
that he understood. When he finished reading the rights, Naldoza asked whether Arriaga
had any questions about any of the rights that had just been reviewed. Naldoza then read
the portion of the form that asked: "Having these rights in mind, do you wish to talk to
me now, no or yes?" Arriaga indicated a bit of reluctance, stating, "I don't know about
that." Naldoza responded, "It's up to you, my friend." Naldoza then waited quietly until
Arriaga agreed to speak with him.

Under these circumstances, a reasonable person in Arriaga's position would have
understood that the rights applied to him, despite his lack of citizenship. Naldoza
painstakingly reviewed the rights, answered Arriaga's questions about them, and
confirmed that Arriaga understood the rights. After reading the rights and Arriaga
indicated doubt about whether to talk with Naldoza, Naldoza did not pressure him or tell
him that the rights were not applicable to him but told him that the decision was
Arriaga's. Ultimately, if Arriaga had no rights, why would Naldoza go over those rights
so thoroughly with Arriaga? Under the totality of the circumstances, the slight
16

implication that the constitutional rights applied only to United States citizens was not
sufficient to undermine the deliberate extension of those rights to Arriaga. This argument
does not warrant suppression of Arriaga's statements to Naldoza.

Finally, even if Arriaga's statements were admitted in violation of Miranda, the
erroneous admission would have been harmless beyond a reasonable doubt. See Arizona
v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (applying
constitutional harmless error test to erroneous admission of involuntary statement to
police); State v. Aguirre, 301 Kan. 950, 962, 349 P.3d 1245 (2015) ("[State v.] Swanigan
[, 279 Kan. 18, 45, 106 P.3d 39 (2005),] clarified that the harmless error rule applies to
the erroneous admission of an involuntary confession."); see also State v. Moyer, 302
Kan. 892, 917, 360 P.3d 384 (2015) (reiterating the constitutional harmless standard as
proof beyond a reasonable doubt that the error did not affect the outcome of the trial in
light of the entire record).

While Arriaga's admissions established his participation in the driving incident,
this fact was not disputed. Although he admitted that someone might have been harmed,
Arriaga denied that he intended to cause harm and insisted that he did not believe anyone
would be harmed. These statements might have been damaging in a case charging
reckless aggravated battery, but the admission does not substantially further the jury's
duty to determine the elements of aggravated assault. See K.S.A. 2015 Supp. 21-5412(a)
and (b)(1) (collectively defining aggravated assault as "knowingly placing another person
in reasonable apprehension of immediate bodily harm . . . [w]ith a deadly weapon").
Arriaga's admissions did not remove the State's obligation to prove the intent to place the
occupants of the truck in apprehension of immediate bodily harm. Evidence of this intent
was inferred almost exclusively through the narrative accounts of Samano and Perez and
their descriptions of their perceptions of the event. Any erroneous admission of Arriaga's
statements was harmless beyond a reasonable doubt.

17

DID THE DISTRICT COURT ERR IN REFUSING TO GIVE A MULTIPLE-ACTS UNANIMITY
INSTRUCTION AS REQUESTED BY ARRIAGA?

Next, Arriaga contends the district court erred in refusing to give the requested
multiple-acts jury instruction. Appellate courts now employ a multifaceted review of an
appellate challenge to jury instructions. First, a reviewing court establishes the extent of
the review based upon the court's jurisdiction and the appellant's preservation of the issue
in the district court. This determination, being a question of law, is subject to unlimited
appellate review. Next, the court determines the appropriateness of the challenged
instruction, legally and factually. The court's review of the legal appropriateness of the
instruction is also subject to unlimited review; its review of the factual appropriateness is
based upon the sufficiency of the evidence supporting the instruction, when viewed in a
light most favorable to the party requesting the instruction. Finally, if an instruction was
either given or omitted in error, the appellate court considers whether the error could
have been harmless. State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

Preservation

There is no question in this case that the jury instruction issue Arriaga raises on
appeal was properly preserved in the district court. K.S.A. 2015 Supp. 22-3414(3)
requires a party in a criminal proceeding to register an objection to a proposed instruction
or an omitted instruction before the jury retires to begin deliberations. The objection must
distinctly state the matter to which the party objects and the grounds for the objection.
See Woods, 301 Kan. at 876 (citing K.S.A. 2011 Supp. 22-3414[3] for duty to state
distinctly an objection before jury retires). Here, Arriaga requested a unanimity
instruction during the jury instruction conference based upon his belief that the State's
evidence demonstrated multiple acts that might have supported the single charge of
aggravated assault. The district court specifically rejected the instruction, characterizing
the factual occurrences of the case as a unitary criminal act.

18

Appropriateness

Where the State presents evidence of two or more acts, each of which could
support a conviction for the charged crime, the State must either elect the act it wishes the
jury to consider or the court must instruct the jury that its verdict must be unanimous as
to the act constituting the charged crime. State v. Sprague, 303 Kan. 418, 423, 362 P.3d
828 (2015) (citing State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 [2014]).

Whether the State has presented multiple acts that independently satisfy the
elements of the charged offense depends, in turn, on whether the evidence reveals
incidents that are legally and factually separate. Sprague, 303 Kan. at 423 (citing State v.
De La Torre, 300 Kan. 591, 598, 331 P.3d 815, cert. denied 135 S. Ct. 728 [2014]; State
v. King, 297 Kan. 955, 979-80, 305 P.3d 641 [2013]). The Kansas Supreme Court has
adopted four factors to assist with the unitary-act/multiple-acts determination: (1) Did
the incidents occur within the same temporal proximity (i.e., within the same timeframe)?
(2) Did the incidents occur within the same location? (3) Is there a causal relationship
between the incidents (focusing particularly on the existence or absence of intervening
events)? and (4) Was there some fresh impulse motivating the defendant's conduct? King,
297 Kan. at 981 (quoting State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 [2006]).

When the circumstances of this case are closely examined, the district court's
characterization of the incidents as unitary conduct is justified. Though the various
collisions between the two vehicles occurred blocks apart, which might seem to indicate
separate events, the incidents may fairly be viewed as occurring within the same general
location, given the nature of a car chase. Arriaga's pursuit of the truck was never
interrupted, in spite of Ezekial's attempt to elude Arriaga for a period of time. The stress
of the occupants of the truck was therefore never alleviated to begin anew when Arriaga
relocated them. The evidence presented at trial did not indicate that Arriaga's motive for
chasing the truck—jealousy in witnessing his ex-girlfriend/ex-wife with another man—
19

ever changed during the pursuit. The various incidents involved in the car chase
constituted unitary criminal conduct.

Caselaw based upon similar factual circumstances support this conclusion. In State
v. Castleberry, 301 Kan. 170, 186-87, 339 P.3d 795 (2014), a fugitive attempted to evade
police in his car and, after being stopped with stop sticks, resisted the officers' commands
when they were attempting to place him under arrest. Castleberry argued that the conduct
occurring in his car was separate and distinct from the conduct displayed after he
emerged from his car, thus justifying a unanimity instruction for multiple acts. The
Kansas Supreme Court disagreed. 301 Kan. at 187 ("Because Castleberry's actions were
all part of one continuous act, unbroken by a fresh impulse, this was not a multiple acts
case.").

In State v. Bischoff, 281 Kan. 195, 201-03, 131 P.3d 531 (2006), the Kansas
Supreme Court reversed a conclusion by this court that a car chase for 30 minutes
followed by a decision to deviate from a planned route so that he could stop and confront
the driver of the other vehicle constituted multiple acts.

"[State v.] Kesselring[, 279 Kan. 671, 112 P.3d 175 (2005)] is analogous to the
instant case. Like the crime of kidnapping, the crime of aggravated assault, in the form of
'road rage,' may occur over a longer period of time. Although the events at issue
transpired for perhaps 8 minutes over approximately 8 miles, once Bischoff 'initiated the
altercation' [citation omitted], there were no breaks in the sequence of events sufficient to
establish separate criminal acts. The incidents on the interstate and on the exit ramp prior
to Bischoff leaving his semi were a continuous incident, as road rage. Bischoff's exit
ramp conduct in his semi was not motivated by a fresh impulse." Bischoff, 281 Kan. at
203.

In State v. Crossett, 50 Kan. App. 2d 788, 322 P.3d 840 (2014), rev. denied 302
Kan. ___ (August 20, 2015), the defendant challenged the district court's failure to give a
20

unanimity instruction for multiple acts. The evidence demonstrated that Crossett chased a
vehicle containing three adults and two children, driving erratically. When the other
vehicle pulled over, Crossett got out of his truck and banged on the window, demanding
access to one of the adult passengers. When the driver of the other vehicle pulled away,
Crossett returned to his vehicle and continued to pursue. Crossett tried to force the other
vehicle off the road. When the other vehicle again stopped, Crossett angled his vehicle so
that the other vehicle could not drive away, again approaching the window. After
reviewing Bischoff, Kesselring, State v. Hilson, 28 Kan. App. 2d 740, 20 P.3d 94, rev.
denied 271 Kan. 1039 (2001), and State v. Staggs, 27 Kan. App. 2d 865, 9 P.3d 601, rev.
denied 270 Kan. 903 (2000), this court rejected Crossett's multiple-acts argument.

"After considering Crossett's actions within the context of the four factors set out
in Schoonover, and the factual scenarios of Bischoff, Kesselring, Staggs, and Hilson,
Crossett's actions were not multiple acts but constituted one single continuous course of
conduct. Crossett's testimony failed to establish any meaningful break in the action that
would establish separate acts. Although the events transpired over several miles, there
were no breaks in the sequence of events sufficient to establish separate criminal acts.
Similar to Bischoff, if the State had charged Crossett with separate counts of aggravated
child endangerment based on events before and after the final stop, defense counsel
would undoubtedly be raising a claim of multiplicity. The incident here was not
susceptible to dissection into further components that would constitute multiple acts;
rather, it was a continuous incident that could not be factually separated. As a result, it
was not clearly erroneous for the trial court to not give a unanimity instruction because
Crossett's case did not involve multiple acts." Crossett, 50 Kan. App. 2d at 797-98.

Crossett is instructional on one further point. There were two children in the
vehicle that Crossett pursued and he was charged with two separate counts of child
endangerment. The multiple-acts argument did not involve a single charge pertaining to
multiple victims. Here, the evidence demonstrated three potential victims of Arriaga's
road rage. Nevertheless, this evidence also does not raise a multiple-acts problem because
the State clearly elected the victim of the charged crime, i.e., Ineida Samano. See
21

Sprague, 303 Kan. at 423 (no unanimity problem where State elects act supporting the
charge). Because Arriaga's conduct in chasing and bumping Ezekial's truck on the streets
of Wichita constituted a continuous course of conduct and the State elected the victim of
the charged aggravated assault, the evidence did not support a finding of multiple acts,
warranting a jury instruction on unanimity. Accordingly, the district court did not err.

Harmlessness

Because the district court did not err in refusing to give the requested unanimity
instruction, this court need not consider whether the omission of the instruction was
harmless.

DID THE IMPOSITION OF THE AGGRAVATED PENALTY WITHIN THE APPLICABLE
SENTENCING GRID VIOLATE ARRIAGA'S RIGHT TO DUE PROCESS?

Arriaga's last issue on this appeal concerns the district court's imposition of the
aggravated penalty within the applicable sentencing grid. He contends the sentence
constituted an enhancement of the applicable penalty without a jury finding beyond a
reasonable doubt, which violates his right to due process as interpreted by the United
States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), and Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L.
Ed. 2d 856 (2007).

As Arriaga notes, this issue was not raised before the trial court, but Kansas
appellate courts have addressed Apprendi claims for the first time on appeal. See State v.
Gould, 271 Kan. 394, 404-05, 23 P.3d 801 (2001) (applying the holding of Apprendi to
declare unconstitutional Kansas' upward sentencing departure procedure based on an
issue raised for the first time on appeal).

22

Nevertheless, the sentencing issue raised by Arriaga is controlled by prior Kansas
Supreme Court precedent. See State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008).
This court is bound to apply precedent of our Supreme Court absent some indication the
court is departing from that precedent. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264
P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The Kansas Supreme Court has
given this court no indication that it intends to depart from its conclusion in Johnson. See
State v. Smith-Parker, 301 Kan. 132, 135, 340 P.3d 485 (2014) (citing Johnson with
approval). Arriaga's sentence was within the grid box and, therefore, this court has no
jurisdiction to consider this issue and this issue must be dismissed.

Affirmed in part and dismissed in part.