State v. Dartez

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NOT DESIGNATED FOR PUBLICATION

No. 115,567

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SAMUEL LEE DARTEZ II,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed July 21, 2017.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant, and Samuel Lee
Dartez, II, appellant pro se.

Jeremy J. Crist, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., LEBEN and BRUNS, JJ.

Per Curiam: Samuel Lee Dartez appeals from his convictions for attempted first-
degree murder and battery. On appeal, Dartez contends that the district court erred by
admitting prior bad acts evidence, improperly instructing the jury, entering an
unworkable restitution order, and improperly calculating his sentence. In addition, Dartez
asserts prosecutorial error and juror misconduct. Based on our review of the record,
however, we do not find any reversible error. Thus, we affirm.

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FACTS

Dartez and Stephanie Holden were in a relationship and lived together in Riley
County, Kansas. Two children were born out of their relationship. In June of 2014,
Holden told Dartez that she wanted to end the relationship. However, Holden and the
children were not able to move out until July. During the interim, the couple continued to
share an apartment.

On July 3, 2014, Holden contacted Riley County Police to report an argument with
Dartez that lasted most of the day. Evidently, Dartez yelled at Holden and demanded to
see her cellphone. He also physically searched her to "find if she had hidden anything on
her." In addition, Dartez tackled Holden while looking for her phone. Holden also
reported that Dartez choked and molested her. At some point during the day, Dartez
locked her out of their shared apartment.

On July 6, 2014, police received an anonymous call reporting that someone had
shouted "help" in the area near the apartment that Holden and Dartez shared. Police
officers responded, and Holden told the officers that Dartez had initially stopped her from
leaving the apartment to go to work. According to Holden, Dartez took her book bag and
shoved her several times. Eventually, he shoved her out of the front door and locked it.

The next day, the police were again called to the apartment shared by Holden and
Dartez. On this occasion, Dartez reported that Holden had stolen a vehicle that the two
evidently shared. It is unclear from the record who actually owned the vehicle. However,
Holden told the officers that she helped pay for it and was using the vehicle to move
items from the shared apartment.

The next incident came on July 27, 2014, after Holden had moved out of the
apartment. On that day, Dartez picked Holden up from work. Instead of taking her to a
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friend's house—where she was staying—Dartez took her back to the apartment they
previously shared. According to Holden, Dartez was driving erratically and at one point,
she got out of the vehicle while it was stopped at a stop sign. She later got back into the
car. At some point, Dartez shoved Holden out of the vehicle, and she ran to the police.

The following day, Holden attempted to pick up the couple's children from Dartez'
apartment. It appears that Dartez physically blocked Holden and said she could not take
the children. He then prevented her from leaving. Holden described the month of July
2014 as "hell" for her because of the incidents involving Dartez.

On October 29, 2014, Aleta Hill, one of Holden's coworkers, contacted police, on
Holden's request, about an incident involving Holden and Dartez during the day and night
of October 28, 2014. During the day, Dartez repeatedly called Holden. That night, Dartez
insisted on coming over to Holden's apartment. Holden indicated that she opened the
door and asked Dartez to leave. He refused and yelled at Holden. Evidently, Holden
agreed to let Dartez in to look at her cellphone. Once inside, Dartez cornered Holden in
the kitchen and began smashing her head into the floor. He also choked her while she
attempted to defend herself. Eventually, one of the children woke up, and Dartez left the
apartment. The following day, it appears that Dartez attempted to break into Holden's
apartment but was unsuccessful.

On November 13, 2014, Holden's day started peacefully. However, when she got
out of the shower that morning, Dartez was in her apartment. According to Holden,
Dartez was angry and followed her as she walked out of the apartment. Dartez told
Holden that he wanted a ride, and she refused. As Holden walked away, Dartez followed
her with his hands in his pockets. Holden was scared by Dartez' behavior and started to
run.

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Dartez caught up to Holden and forced her to the ground. Dartez began beating
Holden with his fists and yelling at her. Karen Kemp, an eyewitness who happened to be
near the scene, shouted at him to stop, but Dartez continued beating Holden. Dartez then
pulled out a knife and began stabbing at Holden. Holden attempted to defend herself
using her hands. Fortunately, the knife broke and Dartez stopped his attack. Holden was
able to get up and fled the scene with Kemp.

As a result of the attack, Holden suffered lacerations to her face. She also had
lacerations and tendon damage in her hands. In addition, she had a puncture wound to her
neck. Holden remained in the hospital for 2 days and incurred $25,000 in medical
expenses for the injuries she suffered during the November 13 incident.

The State initially filed two cases against Dartez. On November 10, 2014, in case
14 CR 635, the State charged Dartez with one count of aggravated battery for the October
28 incident. Three days later, in case 14 CR 638, the State charged Dartez with attempted
first-degree murder—in violation of K.S.A. 2014 Supp. 21-5402 and 21-5301, an off-grid
person felony—for the November 13 incident. The State subsequently amended the
attempted first-degree murder complaint down to a severity level 1 person felony.

On June 1, 2015, the State filed a motion to determine the admissibility of
evidence pursuant to K.S.A. 2014 Supp. 60-455. Specifically, the State sought to have
evidence of the July and October domestic incidents introduced at trial to demonstrate
motive and a discordant relationship between Dartez and Holden. Moreover, on June 11,
2015, the State filed an amended information in 14 CR 638, which classified the
attempted first-degree murder charge as a domestic violence offense. Thereafter, the State
moved to consolidate the two criminal cases.

On August 25, 2015, the district court held a hearing on the pending pretrial
motions. Dartez did not object to the State's motion to consolidate. He did, however,
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object to the admission of evidence regarding the prior domestic incidents. Several weeks
later, the district court ordered the two cases consolidated. In addition, the district court
granted the State's motion for permission to introduce the July and October domestic
incidents, finding that such evidence was relevant and probative as to the issues of
motive, intent, and a discordant relationship.

On October 9, 2015, the State filed a second amended information that
incorporated both the aggravated battery charge and the attempted first-degree murder
charge into one pleading. Furthermore, the second amended information classified both
charges as domestic violence offenses. Thereafter, the case proceeded to a jury trial that
commenced on November 16, 2015.

At trial, the State presented the testimony of 14 witness, including Holden, Kemp,
and Hill. In addition, the State also admitted more than 50 exhibits into evidence. After
the State rested, Dartez exercised his right not to testify, and he did not present any
evidence at trial.

On November 19, 2015, the jury convicted Dartez of attempted first-degree
murder and battery, the lesser-included offense of the aggravated battery charge. The jury
agreed that both of these crimes committed by Dartez were acts of domestic violence.
Subsequently, Dartez filed a motion for a new trial as well as a motion for a dispositional
and/or durational downward departure.

At a hearing held on January 29, 2016, the district court denied Dartez' motions.
The district court ultimately sentenced Dartez to 272 months in prison with 36 months of
postrelease supervision on the attempted first-degree murder conviction. The court
further sentenced Dartez to 6 months on the battery conviction, to run concurrently with
his primary sentence. Finally, the district court ordered Dartez to pay $25,000 in
restitution.
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ANALYSIS

Prior Bad Acts Evidence

On appeal, Dartez first contends that the district court erred by admitting evidence
of prior incidents of domestic violence pursuant to K.S.A. 2014 Supp. 60-455. When
reviewing the admissibility of K.S.A. 2014 Supp. 60-455 evidence, we apply a three-part
test: (1) we conduct a de novo review to determine whether the fact to be proven is
material—meaning that it has some real bearing on the case; (2) we apply an abuse of
discretion standard of review to determine whether the material fact is disputed and, if so,
whether the evidence is relevant to prove the disputed fact; and (3) we apply an abuse of
discretion standard of review to determine whether the probative value of the evidence
outweighs the potential for undue prejudice against the defendant. See State v. Longstaff,
296 Kan. 884, 891-92, 299 P.3d 268 (2013). "If the evidence meets all of these
requirements, it is admitted, but in a jury trial the district court must give the jury a
limiting instruction telling the jury the specific purpose for which the evidence has been
admitted (and reminding them that it may only be considered for that purpose)." 296 Kan.
at 892 (quoting State v. Torres, 294 Kan. 135, 139-40, 273 P.3d 729 [2012]).

In this case, Dartez only attacks the district court's action on the second and third
prongs of the test. First, Dartez argues that the district court erred in determining
evidence of his prior domestic incidents was relevant to prove motive, intent, or a
discordant relationship. Next, Dartez argues the evidence was more prejudicial than
probative. As indicated above, we review both of these prongs under an abuse of
discretion standard. A district court abuses its discretion if (1) no reasonable person
would take the view adopted by the district court; (2) the decision is based on an error of
law; or (3) the decision is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015).

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Under K.S.A. 2014 Supp. 60-455(b), prior bad acts can be used to prove a
defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, or lack of
mistake or accident. In addition, evidence of prior acts of domestic violence or marital
dispute involving a couple may be admitted to demonstrate the nature of the relationship
of the parties. See State v. Gunby, 282 Kan. 39, 51, 144 P.3d 647 (2006) (describing the
history of admitting discordant marital relationship evidence when a person is accused of
killing his or her spouse); see also State v. Vasquez, 287 Kan. 40, 53, 194 P.3d 563
(2008) (evidence of a prior incident of domestic violence committed by the accused
against a murder victim was admissible); State v. Maiyo, No. 108,136, 2013 WL
5303525, at *2 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1272
(2014).

Our Supreme Court has recognized that motive is relevant to help explain to a jury
why a person committed the crime. State v. Carapezza, 286 Kan. 992, 999, 191 P.3d 256
(2008). Here, as in Vasquez, the prior acts of domestic violence demonstrate that Dartez
was unwilling to allow Holden to leave the relationship and that the violence continued to
escalate. The incidents of domestic violence were close in time to the attempted murder.
Furthermore, Dartez' closing argument rested, in part, on the suggestion that he had no
motive to try to kill Holden. Thus, we find that the motive for Dartez' actions was
disputed at trial and that evidence of prior acts of domestic violence committed by him
against Holden was relevant to proving that Dartez had a motive to harm her.

In Gunby, our Supreme Court held that testimony regarding a prior violent
incident between the defendant and the victim was admissible as evidence of intent in his
murder trial. 282 Kan. at 44-45, 49. Similarly, the October 28, 2014 incident in which
Dartez choked Holden was relevant to proving that he had intent to do harm to her.
Moreover, a review of the record reveals that the parties disputed the nature of the
relationship between Dartez and Holden. In fact, Dartez' defense relied—in part—on the
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argument that Holden was also an aggressor. Thus, evidence of the nature of the
relationship between the parties was relevant to refute that defense.

Notwithstanding, Dartez argues the district court abused its discretion by
determining the evidence of his prior bad acts was more probative than prejudicial. We
disagree because the prior incidents of domestic violence involved Dartez attacking
Holden, they were committed relatively close in time to the charged crimes, and they are
similar to the crimes charged in this case. Accordingly, we find the evidence of the prior
relationship between Dartez and Holden—as well as the evidence of the history of
domestic violence—to be highly probative to the issues of motive and intent.
Furthermore, evidence of the prior domestic incidents was highly probative as to whether
the jury should categorize the October 28 and November 13 incidents as domestic
violence offenses.

We conclude that the evidence regarding prior acts of domestic violence
committed by Dartez against Holden to be material, relevant, and probative. In addition,
we conclude that the probative value of this evidence outweighed the potential for
producing undue prejudice. Moreover, the district court reduced any prejudice resulting
from the admission of this evidence by giving a limiting instruction. Specifically, the
district court instructed the jury that the evidence could "be considered solely for the
purpose of proving the defendant's motive, intent, and the relationship of the parties."
Thus, we find the district court did not abuse its discretion in admitting prior bad acts
evidence in this case.

Prosecutorial Error

Dartez also contends that the prosecutor committed error in his closing argument.
In State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), our Supreme Court identified a
two-step process that we must apply to evaluate claims of prosecutorial error:
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"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012). We
continue to acknowledge that the statutory harmlessness test also applies to prosecutorial
error, but when 'analyzing both constitutional and nonconstitutional error, an appellate
court need only address the higher standard of constitutional error.' [Citation omitted.]"
Sherman, 305 Kan. at 109.

During closing, the prosecutor argued to the jury that Dartez "stopped stabbing
and cutting Stephanie Holden because the knife broke." Dartez argues that there is no
testimony in the record indicating that the reason he stopped stabbing Holden was
because his knife broke. Regardless, based on our review of the record, we find that this
was a reasonable inference from the evidence the parties presented at trial. In particular,
there was evidence presented that Dartez held Holden on the ground, that he started
stabbing at her with the knife, that at some point the knife broke, and the attacked stopped
shortly thereafter.

In addition, Dartez argues that the prosecutor committed error by asking a
rhetorical question during closing argument. Specifically, he asked why Dartez took "the
knife out of the pocket on the side of his vehicle and [stuck] it in his pocket that morning
on November 13, 2014?" According to Dartez, there is no evidence in the record about
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when he began carrying the knife used in the attack. Again, we find the prosecutor's
argument to be a reasonable inference based on the evidence presented at trial.

Holden testified that she saw a knife in the car sometime prior to the attack. In
fact, she even took a picture of the knife, and the State introduced the photograph into
evidence. Furthermore, Holden testified that the knife in the picture looked like the knife
Dartez used to attack her on November 13. Holden also testified that Dartez had his
hands in his pockets prior to the attack. Finally, a police investigator testified that the
knife used in the attack was never recovered, but that a knife sheath was recovered.
While there may be no direct testimony on this issue, it is reasonable to infer from the
evidence that at some point prior to arriving at Holden's apartment, Dartez removed the
knife from his car, put it into his pocket, and used it to attack Holden. Thus, we conclude
that the prosecutor did not commit error during closing arguments.

Reasonable Doubt Instruction

Dartez next contends that the burden of proof instruction given to the jury by the
district court prohibited the jury's power of nullification. Because Dartez did not object to
the instruction given at trial, we review this issue under a clearly erroneous standard.
State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 (2015). When determining whether an
instruction is clearly erroneous, we engage in a two-step analysis. First, we consider
whether any error occurred, which requires employing an unlimited review of the entire
record to determine whether the instruction was legally and factually appropriate.
Second, if we find error, we must then determine whether we are 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 (2014). The party claiming that an instruction is clearly erroneous
has the burden to establish the degree of prejudice necessary for reversal. State v.
Williams, 295 Kan. 506, Syl. ¶¶ 4, 5, 286 P.3d 195 (2012).

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As found by this court in Silvers v. State, 38 Kan. App. 2d 886, 888, 173 P.3d
1167, rev. denied 286 Kan. 1180 (2008), jury nullification is:

"'A jury's knowing and deliberate rejection of the evidence or refusal to apply the law
either because the jury wants to send a message about some social issue that is larger than
the case itself or because the result dictated by law is contrary to the jury's sense of
justice, morality, or fairness.' [Citation omitted.]"

Of course, nullification is always a possibility because there is nothing prohibiting
a jury from acquitting a defendant if it desires to do so. However, our Supreme Court has
expressly disapproved of the use of a jury nullification instruction that tells jurors that
they "may do what they think is fair" or that they are entitled to act upon their
conscientious feelings as to a fair outcome and to acquit the defendant if they believed
justice required such a result. See State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 65-67, 260 P.3d
86 (2011); State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973). On the
other hand, jury instructions cannot forbid a jury from exercising its power of
nullification nor can they "compel a jury to convict, even if it finds all elements proved
beyond a reasonable doubt." State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485
(2014).

Here, the district court properly instructed the jury about its role and the burden of
proof. In particular, the district court's instructions regarding the function and duty of a
jury are consistent with K.S.A. 22-3403(3), which states: "When the trial is to a jury,
questions of law shall be decided by the court and issues of fact shall be determined by
the jury." Likewise, the district court's instructions are consistent with K.S.A. 2014 Supp.
60-247(d), which provides that "[t]he jurors must swear or affirm to try the case
conscientiously and return a verdict according to the law and the evidence."


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Furthermore, numerous opinions of this court have rejected the argument that the
use of the word "should" in the burden of proof instruction found at PIK Crim. 4th 51.010
(2012 Supp.) somehow prohibits a jury from exercising the power of nullification. See
State v. Allen, 52 Kan. App. 2d 729, 733-36, 372 P.3d 432 (2016); see also State v.
Cuellar, No. 112,535, 2016 WL 1614037, at *1-2 (Kan. App. 2016) (unpublished
opinion), rev. denied 306 Kan. __ (April 17, 2017); State v. Hastings, No. 112,222, 2016
WL 852857, at *4-5 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. __
(April 17, 2017); State v. Singleton, No. 112,997, 2016 WL 368083, at *4-6 (Kan. App.)
(unpublished opinion), rev. denied 305 Kan. 1257 (2016); State v. Jones, No. 111,386,
2015 WL 4716235, at *5-6 (Kan. App. 2015) (unpublished opinion), rev. denied 303
Kan. 1080 (2016). As can be seen from a review of these cases, our court has consistently
found that the burden of proof instruction "'does not upset the balance between
encouraging jury nullification and forbidding it. . . . [U]nlike the words must, shall, and
will, the word should does not express a mandatory, unyielding duty or obligation;
instead, it merely denotes the proper course of action and encourages following the
advised path.' Hastings, 2016 WL 852857, at *4." Allen, 52 Kan. App. 2d at 735.
Accordingly, we conclude that the district court did not err in instructing the jury either
prior to or at the conclusion of the trial.

Restitution Order

Dartez also contends that the district court's restitution order of $25,000 was
unworkable in light of the length of his sentence and his limited earning power while he
is in prison. The review of an order directing a criminal defendant to pay restitution
concerning the "'amount of restitution and the manner in which it is made to the
aggrieved party'" is reviewed under the abuse of discretion standard. State v. Shank, 304
Kan. 89, 93, 369 P.3d 322 (2016). Restitution can be denied if the district court finds that
a restitution plan is unworkable. K.S.A. 2016 Supp. 21-6604(b)(1). The burden is on the
defendant to present evidence of "compelling circumstances" to prove the restitution plan
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is unworkable; defendant's imprisonment also is not sufficient to render restitution
unworkable. State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015).

Here, the district court was aware of Dartez' financial circumstances when it
ordered restitution. The district court also knew that Dartez was obligated to pay child
support and had mental health issues. However, we find nothing in the record to show
that Dartez presented compelling circumstances that the order to pay restitution was
unworkable. Moreover, the district court did not require Dartez to pay the restitution back
in any particular way or at any particular time. Rather, the district court simply entered an
order of restitution, which constitutes a civil judgment against Dartez, based on the
amount of medical expenses incurred by Holden as a result of the attack on November
13, 2014.

As the State notes, a defendant's imprisonment alone is not sufficient to render a
restitution order unworkable. Alcala, 201 Kan. at 840; see also State v. Holt, 305 Kan.
839, 390 P.3d 1 (2017). While Dartez offered a handful of arguments at sentencing about
why he might struggle to pay restitution, he offered no evidence that he, in fact, would be
unable to pay the award. As in Alcala, the district court in the present case did not impose
a requirement that Dartez pay restitution immediately, and in fact, the district court
recognized he may not make payments "for a significant period of time." At most, Dartez'
arguments suggest he may find it difficult to pay in the future, which is not the same as
showing compelling circumstances why a restitution plan is unworkable. Thus, because
we find that Dartez failed to meet his burden, we find no abuse of discretion on the part
of the district court in ordering restitution in this case.

Criminal History Score

In addition, Dartez contends the district court erred in calculating his criminal
history score. He argues that the use of his criminal history to calculate his sentence
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under the sentencing guidelines is unconstitutional because the State did not prove his
past convictions to a jury in this case. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Our Supreme Court has rejected this argument. State
v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002) (holding that Apprendi does not require
proving a prior conviction to a jury beyond a reasonable doubt). Moreover, appellate
courts are duty bound to follow Supreme Court precedent absent some indication the
court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478,
488, 104 P.3d 424 (2005). Accordingly, seeing no indication that our Supreme Court is
departing from its previous position, Dartez' Apprendi challenge fails.

Issues Raised in Supplemental Brief

In addition to the issues presented in the appellate brief filed by his attorney,
Dartez was allowed to file a supplemental brief in order to raise additional issues. In his
supplemental brief, Dartez first contends that the district court erred by including a
domestic violence categorization instruction. Because Dartez did not object to this
instruction at trial, we review the inclusion of the instruction under a clearly erroneous
standard. Barber, 302 Kan. at 377. Our analysis for determining whether an instruction is
clearly erroneous was set forth above.

Based on our review of the record, we conclude that the district court did not err in
giving a domestic violence categorization instruction in this case. In the second amended
information, the State alleged that the jury should categorize the crimes committed by
Dartez against Holden as domestic violence offenses. K.S.A. 2016 Supp. 22-4616(a)
requires that the trier of fact—in this case the jury—determine if a defendant committed a
domestic violence offense. We note that the instruction given by the district court
followed PIK Crim. 4th 50.110 (2014 Supp.). Thus, it was both legally and factually
appropriate for the district court to give a domestic violence categorization instruction
based on the evidence presented at trial.
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Dartez, in his supplemental brief, next takes issue with the district court's inclusion
of some, but not all, lesser included offenses in the jury instructions. As the State points
out, however, Dartez specifically told the district court—through his counsel—that he did
not want any lesser included instructions offered at trial. As a matter of trial strategy, his
attorney advised the district court that his client did not want lesser included instructions
to be given because it would be "a release valve in order to find him guilty of a lesser
included offense." Accordingly, we conclude that Dartez waived any objection he may
have had and is barred from raising this issue on appeal. See State v. Jones, 295 Kan.
804, 812-13, 286 P.3d 562 (2012).

Finally, Dartez argues in his supplemental brief that there was possibly juror
misconduct at his trial. He did not raise this issue at trial, and issues not raised below
generally cannot be raised on appeal. See State v. Godfrey, 301 Kan. 1041, 1043, 350
P.3d 1068 (2015). Likewise, Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34)
requires an appellant to explain why an issue that was not raised below should be
considered for the first time on appeal. In State v. Williams, 298 Kan. 1075, 1085, 319
P.3d 528 (2014), our Supreme Court held that litigants who fail to comply with this rule
risk a ruling that the issue will be deemed to be abandoned. See Godfrey, 301 Kan. at
1044.

Even if we were to consider this issue on the merits, Dartez has failed to show any
wrongdoing by a juror. Moreover, Dartez does not attempt to explain the relationship
between the juror he evidently knew and himself. The only factual allegations that Dartez
makes is that he had the juror's contact information in his cell phone and that he did not
look at the jurors throughout the trial. He also fails to show how knowing the juror
prejudiced his rights or affected the verdict rendered by the jury. Therefore, we find there
was no reversible issue with juror conduct during his trial.

Affirmed.