State v. Brown (Court of Appeals)

1

NOT DESIGNATED FOR PUBLICATION

No. 107,494

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDWARD JAVON BROWN,
Appellant.

MEMORANDUM OPINION


Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 18, 2016.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., BRUNS and GARDNER, JJ.

Per Curiam: Edward Javon Brown appeals his conviction of one count of
aggravated battery under K.S.A. 21-3414(a)(1)(A). First, Brown argues the district court
erred in giving an inference of intent instruction to the jury which lessened the State's
burden to prove the intent element of aggravated battery. Second, Brown contends the
court erred in failing to give an accomplice cautionary instruction even though an
accomplice witness testified at his trial. Third, Brown argues that a temporary
substitution of judges during jury deliberations violated K.S.A. 43-168 and constitutes
reversible error. Fourth, Brown argues cumulative error deprived him of a fair trial.
2

Finally, Brown contests the use of his juvenile adjudications in calculating his criminal
history for sentencing purposes. We affirm.

On the evening of August 31, 2010, John Martin was shopping at a convenience
store at a small shopping center located at 15th Street and Adams Street in Topeka. The
parking lot of the shopping center was lit by street lamps and an illuminated sign. Martin
walked out into the parking lot with his purchases and was attacked by Edward Brown, a
black man, and James Pack, a white man. Martin had never met Brown and did not know
why Brown had attacked him. Brown repeatedly hit Martin in the head and called him a
"bitch" and a "faggot." Martin fell to the ground and Brown continued to hit him and
kicked him in the head at least once. Martin thought Pack may have been trying to pull
Brown off of him.

Martin was not sure how long the attack lasted, but he eventually lost
consciousness. Martin had significant trauma to his face. His left eye was swollen shut,
and he had cuts on his forehead and cheek. Martin received 40 stitches to close the cuts
around his left eye. He had a fractured occipital bone, and a cut on the back of his head
that required staples. The frontal area of his brain was bleeding. Martin's injuries took
over a month to heal. As a result of his injuries, he continued to have headaches and
double vision when he looked in certain directions.

Michael MacDonald was working at the liquor store in the shopping center that
night. MacDonald testified that Brown and Pack approached the liquor store. The doors
to the store were locked at that time, but Pack tried to force them open and then hit them.
Brown and Pack then went to the liquor store's walk-up window. MacDonald sold
alcohol to them after they apologized for their behavior. Brown was wearing a pair of
shorts and a red ball cap. MacDonald could not remember what Pack was wearing but
testified that Pack had tattoos up and down his arms.

3

MacDonald testified that approximately 20 minutes later, he was outside smoking
when he heard calls for help. He saw Brown standing over a man on the ground. Brown
was hitting the man in the head and Pack was kicking him. Brown and Pack then took off
running eastbound on 15th Street. The liquor store had a surveillance camera that
captured the walk-up window but not the entire parking lot. The surveillance video from
that night showed two men matching MacDonald's description at the walk-up window
around 10 p.m.

Officer Justin Long responded to the scene and saw Martin in the southwest corner
of the parking lot. Martin was crouched in a fetal position, holding his face in his hands.
Officer Long saw a pool of blood on the pavement. Martin's face was completely covered
in blood.

A witness told Officer Long that a black man and a white man had attacked Martin
and then ran eastbound on 15th Street.

Officer Aaron Jones also responded to the scene. Officer Long told him that
witnesses had last seen the two suspects running east on 15th Street to Hudson Street.
Officer Jones went to 15th Street and Hudson Street and saw Brown and Pack running up
the road. Officer Jones testified that Brown was wearing red shorts, a red hat, and a red-
and-black shirt and Pack was wearing a cut-off sleeve shirt and had tattoos down both
arms. Brown and Pack were about 600 yards from the shopping center. Officer Jones
apprehended Brown and Pack and took them into custody.

Pack testified at trial for the State. According to Pack, he and Brown had gone to
the liquor store that evening. He identified himself and Brown as the two men in the
surveillance video. After leaving the liquor store, they saw Martin in the parking lot. Pack
did not know Martin, but Brown claimed Martin had been harassing Brown's girlfriend.
Pack told Brown, "Do what you gotta do."
4

Pack testified that Brown attacked Martin from behind and hit him in the head
with a closed fist. Brown repeatedly hit Martin in the head and called him some curse
words. Pack tried to pull Brown off of Martin. Brown kicked Martin in the face. Pack
heard Brown say something like, "I bet you won't mess with nobody else's girl."
According to Pack, he and Brown left the parking lot and headed east on 15th Street
toward Pack's house. The two were stopped by police on their way.

Pack testified he was also charged as a result of this incident. He agreed to a sworn
deposition prior to the State making any offers or promises. In his deposition, he said he
was saying exactly what had happened that night. As a result of providing information
under oath in the deposition, Pack received the benefit of a plea bargain. He testified he
was on supervised probation as a result of his plea, but this did not affect his testimony in
any way.

Brown testified in his defense that he had walked to the liquor store with Pack that
night to buy some beer. Brown identified himself in the surveillance video as the man in
the red shorts, red hat, and black shirt. According to Brown, Pack spoke with a man at
length near the liquor store. Pack and the man then walked toward a white SUV parked in
the parking lot. Brown ran into another man he knew and spoke with him regarding a
local copper theft. Brown then decided to go back to Pack's house to meet his girlfriend
who would be returning from work soon. Because he was worried about missing her,
Brown decided to run back to the house. On the way, the white SUV drove past him and
honked. As he turned around, Brown saw Pack 15 or 20 feet behind him. Officer Jones
then pulled up and stopped Brown and Pack. Brown told Officer Jones he did not know
anything about an altercation at the gas station. At trial, Brown denied ever hitting
Martin.

5

The State charged Brown with one count of level 4 aggravated battery (great
bodily harm). A jury convicted Brown as charged. The district court sentenced Brown to
162 months imprisonment and 36 months of postrelease supervision. Brown appeals.

Brown questions the propriety of jury Instruction No. 8, which stated:

"Ordinarily, a person intends all of the usual consequences of his voluntary acts.
This inference may be considered by you along with all the other evidence in the case.
You may accept or reject it in determining whether the State has met its burden to prove
the required criminal intent of the defendant. This burden never shifts to the defendant."

This instruction is identical to PIK Crim. 3d 54.01. Brown did not object to the
instruction at trial, but he now argues the inference of intent instruction was in error
because it diluted the State's burden to prove his intent beyond a reasonable doubt.
According to Brown, aggravated battery (great bodily harm) is a specific intent crime, but
this instruction could have allowed the jury to convict him under an intent standard which
is closer to recklessness. Because he claims this lowered the State's burden of proof, this
instruction also violated Brown's due process rights. Because of this, he contends we
should apply the constitutional reversibility standard. According to Brown, evidence of
his intent was not overwhelming, so this standard is not met.

The State argues this instruction only informs the jury of a permissive inference.
The Kansas Supreme Court has routinely upheld this specific instruction. Furthermore,
when considering the jury instructions as a whole, the district court properly instructed
the jury on the law in this case.

Standard of Review

A party cannot claim error for the district court's giving or failing to give a jury
instruction unless (1) the party objects before the jury retires, stating distinctly the matter
6

to which the party objects and the grounds for the objection; or (2) the instruction or the
failure to give the instruction is clearly erroneous. State v. Smyser, 297 Kan. 199, 204,
299 P.3d 309 (2013). An appellate court uses a two-step process in determining whether
the challenged instruction was clearly erroneous. First, the court must determine whether
there was any error at all by considering whether the subject instruction was legally and
factually appropriate, employing an unlimited review of the entire record. Second, if the
court finds error, it must assess whether it is firmly convinced that the jury would have
reached a different verdict without the error. State v. Clay, 300 Kan. 401, 408, 329 P.3d
484, cert. denied 135 S. Ct. 728 (2014). Reversibility is subject to unlimited review and is
based on the entire record. The party claiming error in the instructions has the burden to
prove the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131,
135, 322 P.3d 353 (2014).

The Inference of Intent Instruction Was Legally and Factually Appropriate

Brown did not object to the instruction, so he can only claim error if the
instruction was clearly erroneous. In this case, however, the instruction was legally
appropriate, so there was no error. The Kansas Supreme Court has consistently held that
PIK Crim. 3d 54.01 does not impermissibly alter the State's burden of proof. See, e.g.,
State v. Ellmaker, 289 Kan. 1132, 1143-44, 221 P.3d 1105 (2009), cert. denied 560 U.S.
966 (2010). As explained in the PIK Committee's Notes on Use for PIK Crim. 3d 54.01,
the inference of intent instruction "is a rule of evidence and does not deal with the
required element of criminal intent necessary for conviction in those cases where criminal
intent is a necessary element of the offense." Moreover, the instruction was "designed to
make it crystal clear that the 'presumption' is only a permissive inference, leaving the trier
of fact free to consider or reject it." PIK Crim. 3d 54.01, Comment. Instruction No. 8
even notes: "You may accept or reject [the inference] in determining whether the State
has met its burden to prove the required criminal intent of the defendant

7

Brown perhaps attempts to distinguish his argument by asserting the instruction
lessened the State's burden to prove the specific intent required for aggravated battery.
According to this court, however, aggravated battery under K.S.A. 21-3414 became a
general intent crime after a 1992 amendment to the statute. Gross v. State, 24 Kan. App.
2d 806, 808–09, 953 P.2d 689, rev. denied 264 Kan. 821 (1998). Brown relies on State v.
Frye, 294 Kan. 364, 374-76, 277 P.3d 1091 (2012), to support his position that
aggravated battery is a specific intent crime. He draws attention to the part of the Frye
opinion that states level 4 aggravated battery "require[s] an intent to do the harm that
results." 294 Kan. at 376. This court, however, has already rejected this argument, noting
this portion of the Frye opinion was dicta and relied on a case discussing second-degree
murder, not aggravated battery. State v. Hobbs, No. 107,667, 2013 WL 1457940, at *3
(Kan. App. 2013) (unpublished opinion), aff'd 301 Kan. 203, 340 P.3d 1179 (2015).
Because aggravated battery is not a specific intent crime, the instruction could obviously
not have lessened the State's burden to prove the requisite specific intent.

Even if aggravated battery were a specific intent crime, however, the instruction
would still have been legally appropriate. Brown argues Instruction No. 8 could have
allowed the jury to convict Brown merely because he had voluntarily committed an act
that caused great bodily harm without having to prove the specific intent to cause such
harm. Brown relies on Ellmaker in support of his argument. In Ellmaker, the defendant
challenged the use of PIK Crim. 3d 54.01, claiming it lowered the State's burden to prove
the specific intent and premeditation elements of premeditated first-degree murder. At
trial, however, the defendant had requested PIK Crim. 3d 54.01-A on general intent. The
Kansas Supreme Court noted that PIK Crim. 3d 54.01-A, which "reiterates the direction"
of PIK Crim. 3d 54.01, blurs the line between general and specific intent crimes. 289
Kan. at 1141. PIK Crim. 3d 54.01-A, however, is distinct from PIK Crim. 3d 54.01 and is
only intended for use with general intent crimes. PIK Crim. 3d 54.01-A, Notes on Use.
While the Ellmaker court never reached the issue of whether PIK Crim. 3d 54.01 lessens
the State's burden to prove specific intent to kill, it did find that PIK Crim. 3d 54.01 did
8

not lessen the State's burden to prove premeditation to kill for first-degree murder. 289
Kan. at 1144. Later cases extended this ruling to specific intent in particular. See, e.g.,
State v. Nelson, 291 Kan. 475, 482-85, 243 P.3d 343 (2010); State v. Lansford, No.
107,918, 2013 WL 5610212, at *15-16 (Kan. App. 2013) (unpublished opinion).
Furthermore, the Ellmaker court noted a permissive inference of intent still requires the
State to demonstrate to the jury that it should infer intent from the proven facts, thus it
does not relieve the State's burden of proof. 289 Kan. at 1144 (citing State v. Harkness,
252 Kan. 510, 526, 847 P.3d 1191 [1993]). Because an inference of intent instruction
does not relieve the State's burden to prove specific intent, the instruction was legally
appropriate.

Any Error was Harmless

Brown argues that because the inference of intent instruction lowered the State's
burden of proof, his due process rights were violated and we must apply the
constitutional harmless error test laid out in Chapman v. California, 386 U.S. 18, 87 S.
Ct. 824, 17 L. Ed. 2d 705 (1967). The Kansas Supreme Court, however, has already held
that a permissive inference of intent instruction does not violate a defendant's
constitutional right to due process. State v. Stone, 253 Kan. 105, 105-08, 853 P.2d 662
(1993). Furthermore, characterizing an issue as a constitutional claim does not overcome
Brown's failure to raise the issue at the district court level. See State v. Williams, 295
Kan. 506, 517, 286 P.3d 195 (2012) (Characterizing an issue as a constitutional claim
does not advance the procedural posture when the instruction was not requested below.).
As K.S.A. 22-3414 states, if a party does not object to the giving or failure to give an
instruction, any error will be analyzed under the clearly erroneous standard.

Under the clearly erroneous standard, an appellate court must assess whether it is
firmly convinced that the jury would have reached a different verdict without the error.
Clay, 300 Kan. at 408. Supposing Instruction No. 8 was erroneous, however, the record
9

does not suggest the jury would have reached a different verdict without the error. Jury
Instruction No. 6 stated that the State had the burden of proof. The State reiterated this
point twice in closing arguments. In addition, the State presented significant evidence of
Brown's guilt including eye witnesses who positively identified Brown as the attacker;
testimony from Brown's codefendant Pack; and surveillance video confirming Brown
was at the scene of the crime. Brown was the only defense witness, and the State was
able to call into question his credibility, at least to some degree. Thus, even if the
instruction had been erroneous, the record does not support a firm conviction that the jury
would have reached a different verdict without it.

Brown argues Pack was an accomplice witness, and the district court committed
reversible error in failing to give the jury an accomplice cautionary instruction. The State
does not contest that Pack was an accomplice witness but maintains any error in not
giving the instructions was harmless.

Standard of Review

Brown did not object to the district court's failure to give an accomplice cautionary
instruction, and the record does not indicate he requested the instruction. In such cases,
an appellate court must determine if the failure to give the instruction was clearly
erroneous. Smyser, 297 Kan. at 204. First, an appellate court must determine if the
instruction was legally and factually appropriate. If so, the court must determine whether
it is firmly convinced the jury would have reached a different verdict if the instruction
had been given. Clay, 300 Kan. at 408.

An Accomplice Cautionary Instruction Was Legally and Factually Appropriate

Whether an accomplice instruction was legally and factually appropriate depends
on whether the witness was actually an accomplice. State v. Simmons, 282 Kan. 728, 734,
10

148 P.3d 525 (2006). An accomplice is a person who solicits, requests, or commands
another person to commit a crime, or aids the other person in planning or committing it,
with the intent to promote or facilitate the commission of the crime. State v. Tapia, 295
Kan. 978, 996-97, 287 P.3d 879 (2012); see also PIK Crim. 3d 52.18 (now PIK Crim. 4th
51.090) ("An accomplice witness is one who testifies that [he] was involved in the
commission of the crime with which the defendant is charged."). When an accomplice
testifies, the better practice is for the district court to give an accomplice cautionary
instruction regardless of whether the testimony is corroborated or not. Tapia, 295 Kan. at
996 (citing State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 [1981]); see PIK Crim. 3d
52.18, Notes on Use.

Both Brown and the State agree that Pack was an accomplice witness. Pack was
charged in connection with the incident and testified at trial regarding his and Brown's
involvement. Pack told Brown, "Do what you gotta do" prior to the attack on Martin and
was with Brown during the attack. Under the facts of this case, an accomplice instruction
was legally and factually appropriate.

The District Court's Error was Harmless

In determining whether the failure to give an accomplice instruction was
reversible error, Kansas appellate courts "have examined the extent and importance of an
accomplice's testimony, as well as any corroborating testimony." Tapia, 295 Kan. at 997.
Reversible error does not occur due to a district court's failure to give an accomplice
cautionary instruction where the accomplice witness' testimony "'is corroborated by other
evidence and the witness' testimony does not provide the sole basis for a resulting
conviction.'" 295 Kan. at 997 (quoting Simmons, 282 Kan. at 740). Also, when the jury is
cautioned about the weight to be accorded testimonial evidence in another instruction, a
district court's failure to give an accomplice cautionary instruction is not reversible error.
295 Kan. at 997 (citing Simmons, 282 Kan. at 740).
11


In this case, the district court's failure to give an accomplice cautionary instruction
was harmless. Pack's testimony was not the sole basis for Brown's conviction. His
testimony was corroborated by Martin and MacDonald. Martin positively identified
Brown as his attacker, and MacDonald testified he saw Brown hitting Martin. The State
elicited testimony from Pack that Pack had been charged in conjunction with the case,
and he had received the benefit of a plea deal based on his statements in a sworn
deposition. Furthermore, the court also gave an instruction on witness credibility.

Brown argues, however, the district court's error was reversible and cites to
Simmons in making his case. In Simmons, several alleged accomplice witnesses testified
at trial along with the victim. The victim was not able to positively identify the defendant
and was only able to give a general description that mostly matched the defendant's
appearance. The testimony of the alleged accomplice witnesses "played an important
role" in tying the defendant to the victim's described attack. The Simmons court found
failure to give an accomplice cautionary instruction was harmless error, however,
because the witnesses' testimony was corroborated; they were subject to cross-
examination about their credibility; their testimony was not the sole basis of the
defendant's conviction; and the court gave an instruction on witness credibility. 282 Kan.
at 740-41.

Brown argues his case is distinguishable from Simmons and thus the error in his
case is reversible. According to Brown, the testimony of the alleged accomplice
witnesses in Simmons played an "important role" in the defendant's conviction. In
contrast, Brown contends Pack's testimony played a central role. In defense of his
position, Brown notes the prosecutor specifically mentioned Pack's testimony in his
closing argument. The prosecutor, however, first discussed the testimony from Martin
who, unlike the victim in Simmons, was able to positively identify Brown as his attacker.
The prosecutor then noted, "Mr. Pack corroborates Mr. Martin's testimony," emphasizing
12

the importance of Martin's testimony. The prosecutor also discussed MacDonald's
testimony and other witnesses at length. Brown also notes the prosecutor asked the jury
not to discount Pack's testimony, but this is not incompatible with considering his
testimony with caution.

Brown also notes the jury requested a readback of only Pack's and Brown's
testimonies to support his argument that Pack's testimony played a critical role. Brown
argues this suggests these two testimonies were the crux of the case for the jury. The
jury's reasons for wanting the readback, however, are not part of the record. Any guesses
as to these reasons are speculation on the part of Brown. Since Pack's testimony was
corroborated and the district court gave instructions on witness credibility, the failure to
give an accomplice cautionary instruction does not constitute reversible error.

However, we note that although the facts of this case cause the error to be
harmless, the failure to give an accomplice instruction where appropriate is an error and
we stress that is should be given when appropriate.

We will next consider whether the change of judges during jury deliberations
constituted reversible error.

Brown argues a substitute judge took the bench during jury deliberations without
complying with K.S.A. 43-168, and this constituted reversible error. During
deliberations, the jury asked for a readback of Pack's testimony and Brown's testimony.
Judge Parrish later stopped the readback and stated:

"We are back on the record in the middle of read back. I have another jury trial that is
starting. I have jurors waiting for this other jury trial. I'm asking if counsel have any
objection to Judge Hendricks, who's standing behind me, to be the presiding judge over
the remainder of the read back."
13


Neither counsel objected. Prior to taking the bench, Judge Hendricks did not
indicate he had familiarized himself with the record. After Judge Hendricks took
the bench, the readback continued. At the end of the readback, Judge Hendricks
stated, "Ladies and gentlemen, as you know, I came in late so I'm assuming that's
the testimony you asked the read back for. Counsel, would you agree that's the
read back you requested?" Both attorneys agreed. Judge Hendricks gave the jurors
a 15-minute recess and returned them to deliberations. Before the jury returned a
verdict, Judge Parrish returned to the bench. Judge Parrish did not indicate she had
familiarized herself with the portion of the record she had missed before returning
to the bench.

Standard of Review

The State argues this issue is not properly before us due to invited error.
Under the invited error doctrine, a party may not invite error then complain of the
error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). This
court has previously held that when a defendant is asked if there are any objections
to the substitution of a judge and the defendant fails to object, the defendant has
invited error and cannot raise the claim on appeal. State v. Atkinson, No. 90,356,
2004 WL 1542324, at *6 (Kan. App. 2004) (unpublished opinion). In this case,
Judge Parrish asked defense counsel if there were any objections to the
substitution, and defense counsel said there were not. Thus, invited error may bar
Brown's claim from review. The Atkinson court, however, chose to address the
merits of the claim because it involved judicial conduct, so we will continue the
analysis of this issue.

This issue was not raised before the district court. Generally, issues not
raised before the district court cannot be raised for the first time on appeal. See
14

State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are, however,
several exceptions to this rule. A newly asserted theory may be heard for the first
time on appeal if (1) the newly asserted theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of justice or to prevent
denial of fundamental rights; and (3) the judgment of the trial court may be upheld
on appeal despite its reliance on the wrong ground or having assigned a wrong
reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Brown argues this issue is reviewable because it meets both the first and
second exceptions. It meets the first exception because it is a matter of statutory
interpretation which is purely a question of law. It meets the second exception
because the substitution of a judge who is not thoroughly familiar with the trial
record violates a defendant's constitutional right to a fair trial. Brown's only
support for this second contention is State v. Boyd, 27 Kan. App. 2d 956, 961-62,
9 P.3d 1273 (2000), abrogated on other grounds by State v. Brown, 300 Kan. 565,
331 P.3d 797 (2014). The Boyd court noted that "a criminal defendant is not
denied any constitutional right when the original trial judge is replaced by another
judge who is thoroughly familiar with the record." Boyd, 27 Kan. App. 2d at 961-
62. Brown argues the inverse implication is a substitute judge who is not familiar
with the record denies a constitutional right, but provides no other support. Other
jurisdictions, however, have held a defendant's constitutional rights were not
violated by the substitution of an unfamiliar judge if there was no prejudice to the
defendant. See, e.g., United States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.
1978); People v. Lewis, 422 N.Y.S.2d 380, 383 (1979). In any case, we can at least
review this issue under the first exception since the facts are uncontested, and the
only issue is interpretation of K.S.A. 43-168.

15

Interpretation of a statute is a question of law subject to unlimited review.
State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91 (2014). The
substitution of judges during a jury trial is governed by K.S.A. 43-168, which
states:

"If by reason of death, sickness or other disability the judge before whom a jury
trial has commenced is unable to proceed with the trial, another judge sitting in or
assigned to the court in which the action is being tried, upon certifying that he has
familiarized himself with the record of the trial, may proceed with and finish the trial."
K.S.A. 43-168.

If a judge fails to familiarize himself or herself with the record before substitution,
a reviewing court must "assume prejudice unless the record shows beyond a
reasonable doubt that no significant prejudice occurred." Boyd, 27 Kan. App. 2d at
963. There can be no prejudice to the defendant, however, if the substitute judge
performs only ministerial acts. Boyd, 27 Kan. App. at 962.

Ministerial Acts

While Kansas courts have held that receiving a jury verdict is a ministerial
act, they have never addressed whether presiding over jury deliberations is also a
ministerial act. See Peterson v. State, 203 Kan. 959, 965, 457 P.2d 6 (1969). A
number of other jurisdictions have addressed substitution of judges during jury
deliberations. Annot., 45 A.L.R.5th 591. Several states have held presiding over
jury deliberations is a ministerial act, and in some cases have extended this to
include rereading the original jury instructions given by the trial judge or
responding to jury notes during the trial judge's absence. See, e.g., People v.
Moon, 107 Ill. App. 3d 568, 574, 437 N.E.2d 823 (1982); Gibson v. State, 334 Md.
44, 50-51, 637 A.2d 1204 (1994); Lewis, 422 N.Y.S.2d at 383. These courts
generally reasoned that because the substitute judge did not perform any acts that
16

required personal knowledge of the case, presiding over jury deliberations was
purely ministerial. See, e.g., Moon, 107 Ill. App. 3d at 574; Gibson, 334 Md. at 51;
Lewis, 422 N.Y.S.2d at 383. Other states have found jury deliberations are still
part of the trial process which requires the same judge, and any substitution during
deliberations is reversible error. See, e.g., State v. Jones, 6 Ariz. App. 26, 28, 429
P.2d 518 (1967); State v. Gossett, 11 Wash. App. 864, 871-72, 527 P.2d 91
(1974). In those states that found substitution during deliberations was reversible
error, however, the substitute judge had performed some action that arguably
required some knowledge of the case. See, e.g., Jones, 6 Ariz. App. at 27
(substitute judge denied request for readback of testimony "because of the nature
of the request, and he not being the trial judge."); Gossett, 11 Wash. App. at 870-
71 (substitute judge provided further instruction at request of jury). Thus, the
decisive question in determining whether a judge's acts are ministerial or not
appears to be whether those acts required personal knowledge of the case.

Based on the facts of this case, Judge Hendricks appears to only have
performed a ministerial act. Judge Parrish received the jury's request for a
readback of testimony and made the decision on how to fulfill the request. Judge
Parrish was also present at the beginning of the readback. While Judge Hendricks
presided over the end of the readback, he does not appear to have made any
decisions regarding the readback of the testimony. He did ask if the readback had
fulfilled the jury's request, but Judge Parrish is the one who made the decision on
how the jury's request would be fulfilled. Neither the State nor Brown objected at
any point during the readback, therefore Judge Hendricks was not required to rule
on any objections. Because Judge Hendricks' actions did not require any personal
knowledge of the case at hand, his acts were ministerial and no prejudice can be
found.

17

Harmless Error

Even if Judge Hendricks' acts were not ministerial, the record shows
beyond a reasonable doubt that no significant prejudice resulted. In Boyd, one
judge substituted for another mid-trial without certifying he had familiarized
himself with the record. Because the defendant was unable to show he was
prejudiced in any way, the Boyd court found no prejudice beyond a reasonable
doubt. 27 Kan. App. 2d at 963. The failure to comply with K.S.A. 43-168 was
much less egregious in this case. Judge Hendricks took the bench after all
evidence had been heard and counsel had given closing arguments. He only
presided over the second half of a readback of testimony. While the readback was
not transcribed, the portions of the transcript readback were listed in the transcript.
Additionally, the State, defense counsel, and Brown were all present during the
readback. Both parties consented to the substitution and both parties agreed the
readback had been satisfactory. Furthermore, the jury had already heard the
testimony once live. While Judge Hendricks' failure to comply with K.S.A. 43-168
may not have been best practice, it did not constitute reversible error.

Even if we find any error to be harmless, Brown encourages us to overturn
the holding in Boyd and instead find that violations of K.S.A. 43-168 are
reversible error as a matter of law. Brown points to a concurring and dissenting
opinion in Boyd to support his argument. Judge Lewis argued that a judge who
fails to familiarize himself or herself with the record has no authority to preside
over a trial, and any such trial is void. 27 Kan. App. 2d at 966 (Lewis, J.,
concurring and dissenting).

While Judge Lewis' reading of K.S.A. 43-168 is a possible reading of this
statute, it is not the most common one. This court has noted "[t]he purpose of
K.S.A. 43-168 is to require a judge that is going to take over in the middle of an
18

ongoing trial to be familiar with the record in the case." Atkinson, WL 1542324, at
*6. Facilitating the substitution of judges is intended to prevent mistrials or undue
delays in proceedings. See, e.g., People v. Gonzalez, 51 Cal. 3d 1179, 1211, 275
Cal. Rptr. 729, 800 P.2d 1159 (1990), superseded by statute on other grounds
("[W]hen the original judge becomes unavailable during trial, prudent substitution
may have no actual effect on fairness and is often manifestly preferable to a
mistrial."); Boyd, 27 Kan. App. 2d at 963 ("Continuity in the trial of a case is an
important value."). Viewed in this light, harmless error analysis, rather than per se
reversible error, is more consistent with the intentions of the statute. See, e.g.,
Lewis, 422 N.Y.S.2d at 383 (finding harmless error ruling was "consistent with a
judicial policy to facilitate the administration of justice, a policy which seeks to
eliminate delay in the trial of criminal actions or costly retrial, with due regard for
the constitutional rights of a defendant"). For these reasons, we will continue
applying harmless error analysis to violations of K.S.A. 43-168. In this case, Judge
Hendricks' substitution did not cause any prejudice, and any error was harmless.

We will now address the question of whether cumulative error deprived Brown of
the right to a fair trial.

Brown argues that even if none of the above errors constitute reversible error
individually, their cumulative effect denied him of a fair trial. Under the cumulative error
test, courts analyze whether the totality of the circumstances establish the defendant was
substantially prejudiced by cumulative errors and was thus denied a fair trial. In assessing
the cumulative effect of errors during the trial, the appellate court examines the errors in
the context of the entire record, considering how the trial judges dealt with the errors as
they arose; the nature and number of errors and their interrelationship, if any; and the
overall strength of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).
The court will find no cumulative error when the record fails to support the errors
defendant raises on appeal. See State v. Betancourt, 299 Kan. 131, 147, 322 P.3d 353
19

(2014). A single error cannot constitute cumulative error. State v. Williams, 299 Kan.
509, 566, 324 P.3d 1078 (2014).

The only possible errors in this case are the district court's failure to give the
accomplice cautionary instruction and the improper substitution of Judge Hendricks.
Neither of these errors, however, appear to have prejudiced Brown. Pack's testimony was
partially corroborated and the jury was properly instructed on the credibility of witnesses.
Furthermore, the evidence against Brown at trial was strong. The record does not
demonstrate any prejudice from the temporary substitution of Judge Hendricks during
jury deliberations. Because these errors did not result in substantial prejudice, Brown was
not denied a fair trial.

Finally, we will consider whether the district court erred in using Brown's juvenile
adjudications to increase his sentence without requiring the State to prove them beyond a
reasonable doubt.

For the first time on appeal, Brown argues the district court erred when it
considered juvenile adjudications in his criminal history without requiring their proof
beyond a reasonable doubt. He claims the inclusion of his juvenile adjudications
increased the penalty for his offense beyond the statutory maximum, in violation of
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

A challenge to the constitutionality of a statute is a question of law subject to
unlimited review. State v. Hitt, 273 Kan. 224, 226, 42 P.3d 732 (2002), cert. denied 537
U.S. 1104 (2003). Kansas appellate courts have considered Apprendi claims for the first
time on appeal because they only involve a question of law arising on proved or admitted
facts and are determinative of the case, and consideration of the argument is necessary to
serve the ends of justice or to prevent the denial of fundamental rights. See, e.g., State v.
20

Gould, 271 Kan. 394, 404-05, 23 P.3d 801 (2001); State v. Conley, 270 Kan. 18, 30-31,
11 P.3d 1147 (2000).

As Brown acknowledges, the Kansas Supreme Court has already decided juvenile
adjudications may be used to determine a defendant's criminal history score without
proving them to a jury beyond a reasonable doubt. Hitt, 273 Kan. at 236; see also State v.
Waller, 299 Kan. 707, 728-29, 328 P.3d 1111 (2014) (noting the holding in Hitt is limited
to juvenile adjudications which were final before June 20, 2008, because a later case
found juveniles had a constitutional right to a jury trial). Because there is no indication
the Kansas Supreme Court is departing from this position, we are duty bound to follow
precedent. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev.
denied 294 Kan. 946 (2012).

Affirmed.