State v. Bates

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NOT DESIGNATED FOR PUBLICATION

No. 117,419

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TEVEERE BATES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed March 29,
2019. Affirmed in part and dismissed in part.

Kristen B. Patty, of Wichita, for appellant and Teveere Bates, appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Teveere Bates appeals following his convictions of second-degree
murder and possession of methamphetamine with intent to distribute. Bates argues: (1)
The district court erred in denying his motion to sever the charges; (2) the district court
erred in overruling his objection under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), to the State's use of peremptory challenges to strike two African-
American members of the jury panel; (3) the district court erred in failing to instruct the
jury on the lesser included offense of simple possession of methamphetamine; (4) the
evidence was insufficient to support his second-degree murder conviction; (5) the
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cumulative effect of the alleged errors violated his constitutional right to a fair trial; and
(6) the district court failed to enter its restitution order in open court. Because we find no
errors requiring reversal, Bates' convictions are affirmed, but his appeal on the sixth issue
is now moot and will be dismissed.

FACTS

In the early morning hours of July 8, 2015, officers from the Wichita Police
Department were dispatched to a shooting in the area of Douglas and Estelle Streets.
Officers discovered the shooting victim, Richard Romero, lying in the street. Romero was
taken to the hospital and later died from a gunshot wound.

Officers spoke to individuals at the scene and canvassed the area to search for
possible witnesses to the crime. During the investigation, law enforcement identified
Bates as a potential suspect in the shooting. Following a search of the area, officers
located Bates in the attic of a nearby upstairs apartment. Also in the attic, officers
discovered a black nylon bag with several smaller bags inside, including a Crown Royal
bag that contained two pipes commonly used to smoke methamphetamine. Inside the
black bag, officers found pills, a digital scale, a black phone cord, a gray digital recorder,
and a plastic bag containing 13.88 grams of a white crystal substance that was later
identified as methamphetamine. An audio file recovered from the recorder contained a
recording of several voices, including those identified as belonging to Bates and Romero.
The individuals in the recording engaged in conversation before the sound of a gunshot
was heard. Officers searched the attic and the rest of the apartment but did not locate a
gun.

The State charged Bates with one count each of second-degree murder and
possession of methamphetamine with intent to distribute. At trial, multiple witnesses
testified about the events leading up to Romero's shooting. On July 7, 2015, several
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individuals had gathered at Richard Kennedy's apartment located at the corner of Douglas
and Estelle to celebrate Kristi Dean's birthday. Bates, also known as "Top," lived in an
apartment building north of Kennedy's apartment. Dean testified that she and Bates had
prepared for her birthday party that afternoon and that she arrived at Kennedy's apartment
between 9 and 10 p.m. Several people were already at the party, which took place outside
on Kennedy's porch. Dean testified that Venitia Camel, known as "Baby Sister," and
Isaac Riverson arrived at the party in a green Saturn SUV. Later, Bates arrived on foot
and DeDawn Blake arrived in a black four-door sedan. Romero also joined the party at
some point. According to Dean, Romero appeared only to know a man named Felix,
another guest at the party.

At some point that evening, Bates and Blake left together in Blake's car. Blake
testified that she drove Bates to a Kwik Shop to purchase cigarettes. Tyrell Boor, a Kwik
Shop employee, testified that he was working when Bates came inside the store that
night. According to Boor, Bates carried a black nylon bag that had a Crown Royal bag
inside. Boor stated that Bates opened the Crown Royal bag to reveal crystal-like
substances inside that he identified as methamphetamine and said that he had "gotten
shorted on a deal" by around $500. Video from the Kwik Shop showed Bates entering the
store with a black bag, opening the bag, and displaying its contents to Boor.

Back at Kennedy's apartment, Dean testified that she saw Camel leave the porch
and walk to her car. Dean heard Romero ask if anyone had any weed. Dean then saw
Riverson, Romero, and Felix leave the porch and walk through the yard. Dean denied
witnessing any arguments or hostility between the men. Dean then observed Blake's
black sedan drive around the corner onto Estelle but did not see who was inside.
Thereafter, Dean heard a gunshot and saw Camel's car drive around the corner heading
west on Douglas. Dean did not hear any sort of altercation before the gunshot. Dean
stated that she and Kennedy waited a few minutes and then walked through the yard to
the curb, where they saw Riverson running west in front of the laundromat. Dean claimed
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that Riverson yelled, "Top's crazy" as he ran. Dean saw Romero lying in the street and
Felix, who was knelt down next to him, said that Romero was not breathing. Dean did not
see Bates in the area.

As Dean went back toward Kennedy's apartment she saw Bates running behind
her. Once back at the apartment, Dean said she told Bates that a man was dying in the
street and asked why he would do something like that. According to Dean, Bates said, "I
had to do it, Baby Sister was in the car." Dean responded that Romero was just looking
for some weed and was not trying to hurt anyone. Dean claimed that Bates said, "I didn't
know, I didn't know." Bates then went to Kennedy's front porch, and Dean claimed to
hear Bates tell Kennedy, "[D]on't say anything, don't tell." Dean said that after they heard
the sound of sirens approaching, Bates jumped over to the porch next door and went
upstairs to an apartment belonging to Tamra Silverson.

Dean spoke with law enforcement when they arrived and later went to the police
station for an interview. Dean admitted that she did not see Bates or anyone else with a
gun and did not witness the shooting. Dean also admitted that she drank wine and smoked
marijuana at the party but denied that she was drunk or high. Finally, Dean admitted that
she had told police at least three different versions of events but denied that she had been
coerced or forced to make up her testimony.

Bates testified in his own defense. He stated that on the afternoon of the party, he
ran errands with Dean and bought alcohol and marijuana for the party. Bates said that
when he got to the party that night, he hung out on the porch, where he ate, drank, and
smoked. Bates remembered Romero arriving at the party and said that he had previously
met Romero. Bates testified that he left the party at some point, and Blake drove him to
the Kwik Shop. Bates denied talking to Boor about a drug deal or showing him any
drugs. Instead, Bates claimed that he showed Boor rings and other jewelry that he was
selling.
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Bates said that when he and Blake got back to the party, he saw Riverson and
Romero talking and having some sort of altercation. Bates admitted that his voice was on
the audio recording and stated that the recorder had been in a zippered pouch that he was
wearing. Bates said that he set the pouch on top of Blake's car to go deal with the
altercation between Riverson and Romero. When he asked them what was going on,
Riverson said he was taking Romero to get some weed.

According to Bates, as Romero walked toward Camel's vehicle, Riverson said,
"I'm glad you came because I almost shot that mother fucker." Bates claimed that he had
seen Riverson with a little black handgun earlier in the evening. Bates stated that he tried
to calm Riverson down, and Riverson then went with Romero to Camel's car to get some
weed. Bates said he went back to Blake's car and talked to Blake before he noticed that
Riverson and Romero were again having issues. Bates testified that Romero opened
Camel's car door, which made Riverson mad. Bates said he went to diffuse the situation
and ended up pushing Romero to the ground. Bates stated that he might have punched
Romero but could not recall. Bates claimed that he was simply trying to get Romero to
leave and come back later due to the tension with Riverson. Bates said that Riverson
came up behind him, moved him out of the way, and shot Romero in the chest. But Bates
admitted that he did not see Riverson with a weapon. Bates stated that he first ran to
Blake's car but then ran to Kennedy's apartment, where he ran into Dean. Bates claimed
that Dean was screaming and yelling about a man being dead, so he shook her and told
her to calm down because he was worried that Riverson would come back and shoot
them.

Bates testified that he was "shook up," so he went to Silverson's apartment, where
he went up into the attic area that his friend Ruby was converting into a bedroom. Bates
stated that Ruby gave him a hit of methamphetamine to help him calm down, but this was
the only methamphetamine he saw in the attic and he did not know there was any
additional methamphetamine in the black bag. Bates contended that the bag containing
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the methamphetamine belonged to Ruby, and he believed that she had gotten the drugs
from his cousin. Bates denied that the methamphetamine or the pipes in the bag belonged
to him or that he was holding them for anyone else.

Bates disagreed that he was trying to hide from law enforcement, claiming instead
that he stayed in the attic because he was "shook up" and did not want to see the police.
Bates also said that Silverson had locked the attic door, causing him to be trapped. But
Bates admitted that he had sold marijuana in the past and that he wanted to hide from law
enforcement because the scales were his and he had marijuana on his person. Bates
denied having any type of weapon and denied shooting Romero.

DeDawn Blake corroborated some parts of Bates' testimony. Blake testified that
Bates told her about Riverson, stating that he was about to shoot Romero. Blake said that
when Riverson and Romero went over to Camel's car, Bates got out of her car and went
to talk to them. Blake claimed she saw Bates punch Romero, causing Romero to fall to
the ground. Blake said that she observed Riverson standing over Romero and then heard
a gunshot. But Blake said that Bates and Riverson both had their backs to her and she did
not see a gun or see who shot Romero. Blake admitted that Bates was the only person she
saw getting physical with Romero. Blake also testified that Bates came back to her car
after the shooting and told her to drive him away and stated that he was not going down
for something he did not do. Blake stated that she and Bates drove down the street a
ways, but then she told Bates to get out of the car because she did not want any further
involvement in the situation.

Riverson testified that he did not remember anything about the night of Romero's
shooting and that he could not recall talking to the police or any prior testimony he may
have given, including testimony that Bates had a gun and that he saw Bates shoot
Romero. Riverson denied killing Romero.

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The jury found Bates guilty as charged. The district court sentenced Bates to a
controlling term of 653 months in prison. Bates timely appeals from his convictions and
sentences.

ANALYSIS

As we have noted, Bates raises six areas where he contends the district court erred,
resulting in the need for a new trial in the case. We will deal with each of his contentions
in turn.

Defendant's motion to sever the charges

In his first issue on appeal, Bates contends that the district court erred in denying
his motion to sever the charges against him.

An appellate court reviews potential joinder errors using a three-step analysis,
applying a different standard of review at each step. First, the court determines whether
K.S.A. 22-3202 permits joinder. Under that statute, multiple complaints against a
defendant can be tried together if the State could have brought the charges in a single
complaint. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of
multiple crimes in a single complaint: (1) The charges must be of the "same or similar
character," (2) the charges are part of the "same act or transaction," or (3) the charges
result from "two or more acts or transactions connected together or constituting parts of a
common scheme or plan." Whether one of these conditions is satisfied is a fact-specific
inquiry, and the appellate court will review the district court's factual findings for
substantial competent evidence and the legal conclusion that one of the conditions is met
will be reviewed de novo. State v. Ritz, 305 Kan. 956, 961, 389 P.3d 969 (2017).

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Second, because K.S.A. 22-3202(1) provides that charges "may" be joined, a
district court retains discretion to deny a joinder request even if a statutory condition is
met. An appellate court reviews this decision for an abuse of discretion. State v. Hurd,
298 Kan. 555, 561, 316 P.3d 696 (2013).

Third and finally, if an error occurred in the preceding steps, we determine
whether the error resulted in prejudice, i.e., whether the error affected a party's substantial
rights. K.S.A. 2017 Supp. 60-261; Hurd, 298 Kan. at 561.

In its original complaint, the State charged Bates with a single count of second-
degree murder. The State later amended the complaint to include an additional count of
possession of methamphetamine with intent to distribute. Before trial, Bates moved to
sever the charges. Specifically, Bates claimed that the murder and drug charges were not
of the same general character and that the consolidation of the charges would unfairly
prejudice his defense. In response, the State alleged that the charges were sufficiently
connected because the criminal conduct resulting in the drug charge was precipitated by
the murder charge. Following argument from the parties, the district court denied Bates'
motion to sever the charges. Specifically, the court found that the charges were connected
because "the facts around them are intertwined." The district court further noted that the
conduct resulting in the drug charges was precipitated by the murder investigation:

"The facts that jump out to me are, first of all, the short time frame, we've got the
911 call reporting the shooting and subsequent—and death at 2:50 a.m., we have the
home quarantined very quickly, about 3:00 a.m., have a search initiated very quickly, the
police never leave the scene and at 5:15 a.m. it's reported that the defendant is found
hiding in the attic with the meth. So the short time frame in between the drugs are found
then at the time of the arrest and as a part of this investigation of the death of this
individual."

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Finally, the court found that joinder of the charges would not result in undue prejudice to
the defendant.

Bates argues that the district court's ruling was in error, primarily because the
murder and drug charges are not of the same or similar character. But the district court
did not make such a finding. Thus, we need not review whether the crimes were of the
same or similar character. In denying Bates' motion to sever, the court found that the
crimes resulted from "two or more acts or transactions connected together or constituting
parts of a common scheme or plan." See K.S.A. 22-3202(1). Bates also contends that the
charges were not sufficiently connected to warrant consolidation.

In determining whether the charges are connected together or constitute part of a
common scheme or plan, Kansas courts have broadly construed the "connected together"
language to apply in three situations: (1) when a defendant provides evidence of one
crime while committing another, (2) where some of the charges are precipitated by other
charges, or (3) when all the charges stem from a common event or goal. State v.
Donaldson, 279 Kan. 694, 699-700, 112 P.3d 99 (2005). Courts also may join separate
crimes that share "factual relationships." See State v. Woods, 250 Kan. 109, 117-18, 825
P.2d 514 (1992).

Here, the record reflects that Bates' drug charges resulted from the murder
investigation. Law enforcement was dispatched to the scene of the shooting around
2:50 a.m. The police investigation led to Bates as a suspect, and officers ultimately
located him in the attic of an apartment near the scene of the shooting sometime around
5:25 a.m. When they found Bates hiding, officers also discovered a black bag that
contained pills, a digital scale, a recorder, a phone cord, a plastic bag containing
methamphetamine, and a Crown Royal bag containing two pipes in the same location.
Officers later learned that Bates possessed the same black bag earlier in the evening when
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he went to the Kwik Shop before the shooting and showed the contents of the bag to the
store clerk.

It is undisputed that law enforcement recovered the drugs Bates was charged with
possessing while searching for him during the investigation of Romero's death. They
would not have discovered the drugs under these circumstances were it not for the murder
investigation. Thus, the murder investigation precipitated the conduct resulting in the
drug charge. See State v. Anthony, 257 Kan. 1003, 1016-17, 898 P.2d 1109 (1995)
(charges for criminal possession of firearm and sale of cocaine properly connected to
charges for murder and robbery where firearm discovered during search seeking evidence
of murder and robbery); State v. Moore, 226 Kan. 747, 749-50, 602 P.2d 1359 (1979)
(two cases sufficiently connected together under K.S.A. 22-3202 because first case
precipitated conduct in second case).

We find there to be substantial competent evidence to support the district court's
factual findings that the conduct underlying the drug charge was precipitated by the
conduct relating to the murder charge. These findings were sufficient to support the
court's legal conclusion that Bates' crimes were "connected together," making joinder
permissible under K.S.A. 22-3202(1).

Next, we must review whether the district court's decision to permit joinder under
K.S.A. 22-3202(1) was an abuse of discretion. See Hurd, 298 Kan. at 561. A judicial
action constitutes an abuse of discretion if (1) no reasonable person would take the view
adopted by the district court, (2) it is based on an error of law, or (3) it is based on an
error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The burden is
on Bates to establish the abuse of discretion. See State v. Gaither, 283 Kan. 671, 688, 156
P.3d 602 (2007); State v. Bunyard, 281 Kan. 392, 403, 133 P.3d 14 (2006).

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Bates' arguments do not focus clearly on this step. The only portion of Bates'
supplemental brief that could be construed as addressing abuse of discretion is his
argument that consolidation of the charges led to prejudicial admission of other crimes
evidence under K.S.A. 2017 Supp. 60-455. Bates contends that the jury could have
presumed that a person who possessed and sold methamphetamine was more likely to
shoot someone. But "'Kansas case law and the provisions of K.S.A. 22-3202(1) make it
clear that joinder is not dependent upon the other crimes being joined meeting the
admissibility test set forth in K.S.A. 60-455.'" State v. Smith Parker, 301 Kan. 132, 161,
340 P.3d 485 (2014).

Moreover, Kansas courts have rejected arguments that jurors use evidence of one
crime to prove the other when jurors have been instructed to consider each charge
separately on the evidence and law applicable to it. State v. Cruz, 297 Kan. 1048, 1058,
307 P.3d 199 (2013). The district court here provided the jurors with such an instruction.
"Appellate courts have ascribed to the hypothetical presumption that such an instruction
negates the inherently prejudicial effect of trying a person on multiple counts." 297 Kan.
at 1058; Gaither, 283 Kan. at 687. In short, Bates has not met his burden of establishing
that the district court abused its discretion in denying his motion to sever.

Because joinder was permissible under K.S.A. 22-3202(1) and the district court
did not abuse its discretion in so ruling, we hold that the district court did not err in
denying Bates' motion to sever. As a result, we need not address the third step under
Hurd, i.e., whether any error in consolidation affected Bates' substantial rights. See 298
Kan. at 561.

Batson challenge

As his second issue on appeal, Bates, an African-American, contends the district
court erred in overruling his Batson objection to the State's use of peremptory challenges
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during voir dire to strike R.T. and G.C., potential jurors who were also African-
American.

"The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution 'applies to the State's privilege to strike prospective jurors through
peremptory challenges.'" State v. Dupree, 304 Kan. 43, 57, 371 P.3d 862 (2016). In
Batson, the United States Supreme Court held that the Equal Protection Clause prohibits
prosecutors from exercising a peremptory challenge against a potential juror solely
because of the juror's race. 476 U.S. at 89.

Under Batson, an objection to the State's use of a peremptory challenge during
jury selection is analyzed in three distinct steps, with different standards of review for
each step. Dupree, 304 Kan. at 57.

"'First, the party challenging the strike must make a prima facie showing that the
other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step.
"'Second, if a prima facie case is established, the burden shifts to the party
exercising the strike to articulate a race-neutral reason for striking the prospective juror.
This reason must be facially valid, but it does not need to be persuasive or plausible. The
reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
the explanation. The opponent of the strike continues to bear the burden of persuasion.
"'Third, the trial court must determine whether the objecting party has carried the
burden of proving purposeful discrimination. This step hinges on credibility
determinations. "[U]sually there is limited evidence on the issue, and the best evidence is
often the demeanor of the party exercising the challenge. As such, it falls within the trial
court's province to decide, and that decision is reviewed under an abuse of discretion
standard." [Citations omitted.]'" Dupree, 304 Kan. at 57-58.

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A judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court, (2) it is based on an error of law, or (3) it is based on
an error of fact. Marshall, 303 Kan. at 445.

During voir dire, the prosecutor asked whether the potential jurors had any
personal experience with the criminal justice system. G.C. responded that his older
brother had been convicted of cocaine distribution in the late 1970s and had served 11
years in prison. The prosecutor later asked whether any of the potential jurors knew
anyone in law enforcement. G.C. responded that he had a high school friend who was a
Wichita police officer. G.C. stated that this friend had gotten into some trouble and that
he had not spoken to him for at least a year.

Also during voir dire, R.T. told the prosecutor that she had graduated from college
with a double major in business and theater and liked to do musical theater in her spare
time. R.T. said that she was working two jobs to save money because she wanted to move
to New York.

At the conclusion of voir dire, the prosecutor used one of the State's peremptory
challenges to strike R.T. from the jury. After the prosecutor expressed his intention to use
another peremptory challenge to strike G.C. from the jury, defense counsel objected
pursuant to Batson. Defense counsel noted that G.C. was the last remaining African-
American potential juror, as the State previously had peremptorily challenged R.T. and
the defense previously had peremptorily challenged D.P., the only other African-
Americans on the jury panel. The district court found Bates had made a prima facie
showing that the State had exercised a peremptory challenge on the basis of race and
asked the prosecutor to articulate race-neutral explanations for striking both R.T. and
G.C. The prosecutor stated,

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"With regards to [R.T.], the answers are two-fold. One. The State, in seeking
jurors, seek people with life experience. If the Court were to note that five of the State's
first six strikes were all people who were young, who were uneducated, for the most part,
or still going to college, or had very little life experience outside of that.
. . . .
"[R.T.], what struck the State about [her] is she said she had a dual major, but yet
is working two part time jobs. She occupies her time with theater, trying to save money.
She has very little life experience. Again, she's 23 years old. She is very young. And
while she is educated, the other issue is I find it odd that someone who has two degrees
has to work two part time jobs. One in sales, and one is basically a receptionist, to raise
money, to save money to go to New York to do what she really wants to do.
"And so for those reasons, Judge, we struck [R.T.]. It had nothing to do with
race. It has to do with life experience. And it has to do with experience beyond her jobs.
And I had some concern about her education level, even though she has degrees. I have
concerns when somebody has to work two part time jobs to save money."

As for G.C., the prosecutor noted that the State also had struck another potential juror
whose daughter had a drug conviction and served time in a correctional facility. The
prosecutor continued,

"The State does not prefer people who have close relations to those who have
felony drug convictions.
"[G.C.] had a brother who had—I believe it was a cocaine distribution—felony
cocaine distribution. And although it was in the 70's and he was treated fairly . . . again,
it's not something that we prefer.
"Second of all, he had an individual friend . . . who I believe is currently being
held in Colorado. It's a media case. The Court may recall it received some media
attention. He was the law enforcement officer I believe that is accused—I believe accused
at this point still of molesting children at school.
. . . .
"And so I have a law enforcement officer now, a second person with [G.C.], who has
been associated with criminal conduct. . . . [E]ven though he believed his brother was
15
treated fairly, the State does not prefer people on their jury who associate with those that
have criminal backgrounds. And this would be the second person for [G.C.]."

The district court found that the explanations offered by the prosecutor were race-
neutral and overruled Bates' Batson challenge.

Both parties acknowledge that Bates made a prima facie showing that the State
exercised peremptory challenges on the basis of race. Bates claims that the district court
(1) erred by finding the State articulated race-neutral reasons for striking R.T. from the
jury and (2) abused its discretion in concluding that Bates did not establish purposeful
discrimination with respect to G.C. Bates argues that the State's peremptory strikes of
R.T. and G.C. constituted an unlawful pattern of strikes against prospective African-
American jurors.

As noted above, under the second step of the Batson test, the burden shifts to the
State to articulate a race-neutral reason for striking the prospective juror. When a
prosecutor offers an explanation for striking a juror that does not relate to the
characteristics of any particular race, the reason is race-neutral. State v. Campbell, 268
Kan. 529, 534, 997 P.2d 726 (2000). In this regard, "[t]he State carries a relatively low
burden to provide a race-neutral reason for a strike—the justification must be facially
valid, but it need not necessarily be plausible or persuasive." Dupree, 304 Kan. at 59.

Bates contends that the State's reasons for striking R.T. were not sufficiently race-
neutral to support a peremptory strike. As we noted, the State offered several reasons for
striking R.T. from the jury—her youth, her lack of life experience, her education level,
and the fact that she was working two jobs to save money. The State also struck other
prospective jurors who were not African-American for similar reasons. Although it is
possible to quibble about the validity of the State's rationale, it is undeniable that the
State proffered plausible and facially valid, race-neutral reasons for peremptorily
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challenging R.T. See State v. Williams, 308 Kan. 1320, 1331-32, 429 P.3d 201 (2018)
(State's reasons for striking potential juror because she was young, unmarried, and had no
life experience were race neutral). Thus the State has successfully complied with the
second prong of the Batson criteria in justifying its challenge to R.T.

In the final step of the Batson analysis, the district court must determine whether
the defendant has carried the burden of proving purposeful discrimination. We review
this determination for abuse of discretion. Dupree, 304 Kan. at 58. Bates claims that he
did establish purposeful discrimination with respect to G.C. because the State's claim that
G.C. had a close association with individuals who had criminal backgrounds was contrary
to the record.

As detailed earlier, however, G.C.'s statements about his brother's felony
conviction and imprisonment and his friendship with a law enforcement officer who was
accused of molesting children provide a factual basis to support the prosecutor's concerns
that G.C. had both a family member and a friend with criminal backgrounds. The State
also struck another prospective juror who was not African-American because she had a
daughter with a prior conviction, so the strike of G.C. was clearly consistent with the
State's method of jury selection.

The State's reasons for striking R.T. and G.C. were clearly race-neutral, so they are
deemed as such unless a discriminatory intent is inherent in the explanation. The
opponent of the strike continues to bear the burden of persuasion. Dupree, 304 Kan. at
58. We find no such discriminatory intent to be present here. Under these circumstances,
the district court did not abuse its discretion by concluding that the prosecutor had valid,
race-neutral reasons to strike R.T. and G.C. As a result, the court did not err in overruling
Bates' Batson challenge.


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Simple possession of methamphetamine as a lesser included offense

For his third issue, Bates argues that the district court erred by failing to instruct
the jury on simple possession of methamphetamine as a lesser included offense of
possession of methamphetamine with intent to distribute.

We employ a four-step process when reviewing a district court's failure to give a
lesser included instruction:

"(1) [F]irst, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the trial court erred, the appellate
court must determine whether the error was harmless." State v. Soto, 301 Kan. 969, Syl.
¶ 9, 349 P.3d 1256 (2015).

A district court errs in failing to instruct the jury on lesser included offenses when
there is some evidence that would reasonably justify a conviction of the lesser included
offense. K.S.A. 2017 Supp. 22-3414(3); State v. Armstrong, 299 Kan. 405, 432, 324 P.3d
1052 (2014). An offense is a lesser included offense if the elements of the lesser crime
are identical to some of the elements of the crime charged or if the offense is a lesser
degree of the same crime. K.S.A. 2017 Supp. 21-5109(b); see State v. Simmons, 295 Kan.
171, 176, 283 P.3d 212 (2012). The duty to instruct is triggered by the defendant's request
for such instruction and applies even if the evidence is weak, inconclusive, and consists
solely of the defendant's testimony. State v. Maestas, 298 Kan. 765, Syl. ¶ 6, 316 P.3d
724 (2014).

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The record reflects that Bates requested a simple possession instruction, thus
preserving this issue for appellate review. This instruction would have been legally
appropriate because simple possession is a lesser included offense of the crime of
possession with intent to distribute. See State v. Gilmore, No. 97,362, 2008 WL 5234530,
at *2 (Kan. App. 2008) (unpublished opinion); see also K.S.A. 2017 Supp. 21-5705(a)(1),
(d)(3)(C) (defining severity level 2 possession of methamphetamine as "distribut[ing] or
possess[ing] with the intent to distribute" methamphetamine if quantity possessed was at
least 3.5 grams but less than 100 grams); K.S.A. 2017 Supp. 21-5706(a) (defining simple
possession as possessing methamphetamine).

But for a lesser included instruction to be factually appropriate, "there must be
actual evidence in the record, together with reasonable inferences to be drawn from that
actual evidence that would reasonably support a conviction for the lesser crime." State v.
Wade, 295 Kan. 916, 926, 287 P.3d 237 (2012). Bates claims that a simple possession
instruction was factually appropriate based on his testimony at trial. According to Bates,
he testified that the only methamphetamine he had possessed was some
methamphetamine while he was in the attic, but he was unaware of any additional
methamphetamine other than the amount that he actually possessed and used.

Bates mischaracterizes his testimony. While on the witness stand Bates did not
admit to possessing methamphetamine. Instead, he admitted that he "took a hit of some
meth" after Ruby offered it to help him calm down. Bates claimed that he was only aware
of this methamphetamine that he used. He denied knowledge of the methamphetamine in
the bag in the attic, expressing a belief that it must have belonged to Ruby.

Bates admitted, however, that the video from the Kwik Shop showed that he took
that same bag inside the store. Bates also denied that the bag belonged to him but agreed
that he must have taken it into the attic later. The Kwik Shop employee testified that
Bates had showed him methamphetamine inside the black bag and told him that he had
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been shorted $500 on a drug deal. When law enforcement located Bates in the attic, they
also discovered the black bag. The bag contained a Crown Royal bag, two
methamphetamine pipes, a digital scale, pills, a phone cord, a recorder, and 13.88 grams
of methamphetamine.

Bates was not found in possession of the methamphetamine that he allegedly
smoked or any smaller amount of methamphetamine. Thus, there was no evidence
presented from which the jury could reasonably infer that Bates possessed some lesser
amount of methamphetamine than that discovered in the black bag. Because a lesser
included offense instruction on simple possession was not factually appropriate, the
district court did not err in failing to instruct on the lesser included crime of simple
possession of methamphetamine.

Sufficiency of the evidence on second-degree murder

In his fourth contention on appeal, Bates argues that the State failed to present
sufficient evidence to convict him of second-degree murder. Our standard of review
requires us to review the evidence in a light most favorable to the prosecution:

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

Second-degree murder, as relevant here, is defined as "the killing of a human
being committed: (1) intentionally." K.S.A. 2017 Supp. 21-5403(a). "A person acts
'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a
result of such person's conduct when it is such person's conscious objective or desire to
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engage in the conduct or cause the result." K.S.A. 2017 Supp. 21-5202(h). The district
court instructed the jury accordingly.

In challenging the sufficiency of the State's evidence, Bates notes that there was no
physical evidence or eyewitness testimony implicating him as the shooter. Bates claims
that the evidence presented by the State showed only that he was present and in close
proximity to Romero at the time of the shooting. He alleges that this evidence is
speculative and fails to provide proof of his guilt beyond a reasonable doubt. As
additional support for his argument, Bates cites to evidence in the record implicating
Riverson as the shooter.

But a review of the record in the light most favorable to the State reveals sufficient
evidence upon which a jury could have found beyond a reasonable doubt that Bates
intentionally killed Romero. In addition to the evidence detailing Bates' presence at the
scene of the crime, the jury heard evidence that shortly before the shooting, Bates was
involved in an altercation with Romero and either pushed or punched him. Dean testified
that after she heard a gunshot, she saw Riverson running west and heard him yell, "Top's
crazy." Dean encountered Bates when she went back to Kennedy's house and their
conversation about the shooting included statements from Bates that he "had to do it"
because "Baby Sister was in the car." When Dean told him that Romero was just looking
for weed, Bates said, "I didn't know, I didn't know." Dean also testified that she heard
Bates tell Kennedy, "[D]on't say anything. Don't tell." After the shooting, law
enforcement discovered Bates in a nearby attic.

As earlier stated, when reviewing the sufficiency of the evidence, we do not
reweigh the evidence and must review the record in the light most favorable to the State.
Chandler, 307 Kan. at 668. Moreover, as our Supreme Court has found, "'even the
gravest offense can be based entirely on circumstantial evidence and the inferences fairly
deducible therefrom. If an inference is a reasonable one, the jury has the right to make the
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inference.'" State v. Rosa, 304 Kan. 429, 433, 371 P.3d 915 (2016); State v. Logsdon, 304
Kan. 3, 25, 371 P.3d 836 (2016). It is unnecessary to exclude every other reasonable
conclusion or inference that might be reached from other evidence presented at trial. State
v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). Viewing the evidence in the light
most favorable to the State, we believe there was sufficient circumstantial evidence
presented at trial upon which a reasonable fact-finder could conclude that Bates
committed the crime of intentional second-degree murder.

Cumulative error

In his fifth contention, Bates argues that the cumulative effect of the errors alleged
above deprived him of his constitutional right to a fair trial. When a party argues that the
cumulative impact of alleged errors is so great that they result in an unfair trial, this court
aggregates all errors and, even if those errors individually would be considered harmless,
analyzes whether their cumulative effect is so great that they collectively cannot be
determined to be harmless. State v. King, 297 Kan. 955, 986, 305 P.3d 641 (2013). In
undertaking such an analysis, this court reviews the entire record and exercises unlimited
review. State v. Sean, 306 Kan. 963, 993, 399 P.3d 168 (2017).

But because Bates has not established that any errors occurred in district court, we
reject his cumulative error argument on grounds that there are no errors to accumulate.
See State v. Johnson, 304 Kan. 924, 956, 376 P.3d 70 (2016).

Failure to establish restitution in open court

Finally, Bates argues that the district court's sentencing journal entry of judgment
is erroneous, and he requests that we remand the case with directions that the district
court issue a nunc pro tunc order to correct the journal entry.

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As Bates was leaving the courtroom at the end of his sentencing hearing, the
prosecutor reminded the district court to enter orders regarding restitution and witness
fees. After Bates exited the courtroom, the court ordered Bates to pay witness fees in the
amount of $80 and restitution to the Crime Victim's Compensation Board in the amount
of $5,673.20. The prosecutor noted that the court should also enter an order for a $400
lab fee. The judge responded, "Well, he's gone. I'm not going to bring him back—he's
never—I'm not going to order it." However, the sentencing journal entry of judgment
approved by the court reflected total restitution in the amount of $5,673.20 and witness
fees in the amount of $80.

Bates argues that the part of the journal entry ordering him to pay restitution is in
error because the district court did not enter the order before he left the courtroom and did
not bring him back into the courtroom for purposes of entering a restitution order. While
this appeal was pending, however, the district court issued an order nunc pro tunc
correcting the journal entry to reflect the removal of both the witness fees and restitution
amount. Therefore, this issue is now moot and must be dismissed. See State v. Johnson,
39 Kan. App. 2d 438, 442-43, 180 P.3d 1084 (2008).

Affirmed in part and dismissed in part.