State v. Dale

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NOT DESIGNATED FOR PUBLICATION

No. 110,562

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER DALE,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES F. DAVIS, judge. Opinion on remand filed February
19, 2016. Affirmed in part, reversed in part, and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, C.J., HILL and BUSER, JJ.

Per Curiam: Following this court's memorandum opinion in State v. Dale, No.
110,562, 2015 WL 2414264 (Kan. App. 2015) (unpublished opinion), filed on May 15,
2015, (Dale I), the State filed a petition for review. On February 5, 2016, our Supreme
Court granted the petition for review as to Issue II only and remanded this case to the
Court of Appeals for reconsideration in light of State v. Williams, 295 Kan. 506, 516, 286
P.3d 195 (2012) ("[T]he current definition of clearly erroneous sets up the test to
determine whether the instruction error requires reversal, i.e., whether the reviewing
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court is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred.") (Emphasis added.).

In Dale I, this court concluded that the district court's jury instructions on
aggravated robbery were clearly erroneous, and we reversed Christopher Dale's
convictions of aggravated robbery and remanded for a new trial on those charges. 2015
WL 2414264, at *6. In setting forth the applicable standard of review, this court cited
State v. Brown, 300 Kan. 542, 555, 331 P.3d 781 (2014), for the proposition that a jury
instruction is clearly erroneous only if the reviewing court "'"'is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred.'"'"
(Emphasis added.) 2015 WL 2414264, at *4; see also Williams, 295 Kan. at 516. In the
final paragraph of the memorandum opinion on this issue, we stated: "But because the
district court's jury instructions on aggravated robbery completely undercut Dale's
defense, we are firmly convinced that the jury could have reached a different verdict had
the instruction error not occurred." (Emphasis added.) 2015 WL 2414264, at *6.

In Dale I, this court was aware of the proper standard for determining whether a
jury instruction is clearly erroneous. This court did not consciously intend to use the word
"could" in the above quoted sentence; rather, the use of the word "could" in the above
quoted sentence was a typographical error. This court intended to state as follows: "But
because the district court's jury instructions on aggravated robbery completely undercut
Dale's defense, we are firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred."

We otherwise adopt the reasoning in Dale I as to whether the district court erred in
instructing the jury on aggravated robbery. We conclude that the jury instructions were
clearly erroneous, and we reverse Dale's convictions of aggravated robbery and remand
for a new trial on those charges. We reaffirm Dale's conviction of theft.

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