State v. Jackson

1

NOT DESIGNATED FOR PUBLICATION

No. 112,845

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TYRELL JACKSON,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed October 21,
2016. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Alan T. Fogleman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., POWELL, J., and STUTZMAN, S.J.

Per Curiam: Tyrell Jackson appeals his conviction by a jury of aggravated
robbery alleging seven points of error: (1) The State violated his rights to a speedy trial;
(2) the State committed a Batson violation; (3) the district court erred in limiting his
direct and cross-examination of witnesses; (4) the district court erred in admitting
evidence of prior bad acts under K.S.A. 2015 Supp. 60-455; (5) the district court erred in
failing to give a limiting instruction to the jury after it admitted evidence of prior bad
acts; (6) the district court erred by not instructing the jury on the lesser included offense
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of robbery; and (7) cumulative errors denied him a fair trial. Finding no errors, we affirm
his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of May 12, 2012, Dorsey was at his cousin's apartment in Kansas
City, Kansas, while his vehicle, a 1986 Chevy Caprice, was parked outside the complex.
While in the apartment, Dorsey noticed a Tahoe parked in front of his car and four people
outside of the Tahoe. Dorsey testified he did not know any of the people outside of the
vehicles.

Dorsey started his Caprice via remote start, headed outside, and then got into his
vehicle. One of the men by the Tahoe approached Dorsey, "pulled a gun" on him, and
ordered him to drop his keys. A second man, armed with a rifle, approached Dorsey and
said, "[H]e ain't playing." Dorsey testified that this second man motioned at him with the
rifle indicating that if Dorsey did not drop the keys he was going to shoot him. Dorsey
later identified this second man as Jackson.

Dorsey dropped the keys to the car onto the floor of the Caprice. As he was getting
out of the car, the first man went through Dorsey's pockets and took his wallet. Dorsey's
cell phone was left in the vehicle. At the same time, someone screamed, "Police." In the
near proximity, Officer Walter Jones of the Kansas City, Kansas, Police Department was
conducting a routine traffic stop. Dorsey ran to Jones, told him he had been robbed, and
pointed to his car leaving the area. Jones testified Dorsey was "very upset, very agitated,
[and] was really trying to get [Jones'] attention." Jones initiated pursuit of the vehicle, but
the pursuit was shortly taken over by other officers, including Officer Matthew Baker.
Dorsey told Jones his car and wallet had been taken from him at gunpoint and that he did
not know the people who took his car.

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Baker pursued Dorsey's car into Kansas City, Missouri. During the pursuit Baker
noticed only one person in the car and saw that same person, Jackson, get out of the car at
the end of the pursuit. The pursuit, lasting approximately 17 minutes, was recorded on
Baker's in-car video and played for the jury. At the end of the pursuit while being
arrested, Jackson assaulted a law enforcement officer. This incident was on the video as
well, but no testimony regarding this assault was elicited during trial.

Officer David Kissee of the Kansas City, Missouri, Police Department was also
involved in the pursuit of Jackson. Kissee followed Jackson until the Caprice ran out of
gas in front of the Kansas City, Missouri, police headquarters. Kissee's in-car camera also
captured a portion of the pursuit and Jackson's arrest; this video was played for the jury.
Law enforcement found Dorsey's wallet and cell phone in the Caprice but did not recover
a gun.

Jackson was charged with one count each of aggravated robbery, eluding a police
officer, and aggravated assault of a law enforcement officer. Before trial, Jackson pled
guilty to eluding law enforcement and aggravated assault of a law enforcement officer
and proceeded to trial only on the aggravated robbery charge.

At trial, Dorsey admitted to having prior burglary and theft convictions and that
while he was incarcerated for one of those convictions he was housed in the same pod as
Jackson. Dorsey testified that while he and Jackson were incarcerated together, Jackson
approached Dorsey and asked Dorsey to say that Jackson did not rob him. Dorsey signed
an affidavit to this effect because, although Jackson never threatened him, he did not
want there to be any problems while incarcerated. At trial, Dorsey maintained that
Jackson robbed him and that his affidavit was untruthful.

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Jackson testified that he did not steal Dorsey's car; rather, he had purchased the car
from Dorsey a month earlier. Jackson also claimed he did not have a gun and that he did
not ask Dorsey to write the affidavit changing his story.

The jury found Jackson guilty of aggravated robbery. The district court sentenced
him to 216 months' imprisonment with 36 months' postrelease supervision.

Jackson timely appeals.

DID THE STATE VIOLATE JACKSON'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL?

Jackson first argues that his constitutional right to a speedy trial was violated due
to a delay of 549 days between the date he was charged and the date of his trial. Jackson
does not argue that the State violated his statutory right to a speedy trial, and he
acknowledges that while he was awaiting trial he was incarcerated on another probation
violation case which disqualifies him from the protections of K.S.A. 2015 Supp. 22-
3402(a).

Whether a defendant's constitutional right to a speedy trial has been violated is a
question of law over which this court has unlimited review. State v. White, 275 Kan. 580,
598, 67 P.3d 138 (2003).

The Sixth Amendment to the United States Constitution, applied to the states
through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights
guarantee an accused the right to a speedy trial.

"The United States Supreme Court set forth a balancing test for determining
whether an accused has been denied his or her constitutional right to a speedy trial in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Kansas adopted
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this test in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). The following factors were
set forth in Barker: (1) the length of the delay; (2) the reason for the delay; (3) the
defendant's assertion of the right; and (4) prejudice to the defendant. 407 U.S. at 530."
State v. Mann, 274 Kan. 670, 701, 56 P.3d 212 (2002).

"None of these four factors, standing alone, is sufficient for finding a violation.
Instead, the court must consider them together along with any other relevant
circumstances." State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004). Each factor will
be considered in turn.

A. The length of the delay

"The length of the delay between arrest and trial is key to the analysis. Until the
delay rises to the level of being presumptively prejudicial, it is not necessary to inquire
into the other Barker factors." State v. Davis, 277 Kan. 309, 334, 85 P.3d 1164 (2004);
see Barker, 407 U.S. at 530. Jackson must first show that the length of delay between
arrest and trial was presumptively prejudicial.

The following chronology of events is relevant to this issue:

Event Date Days
Attributed
to State
Attributed
to Jackson
Jackson charged May 18, 2012 — — —
Jackson arrested/first appearance (in
custody until trial)
May 21, 2012 3 3 0
Scheduling Docket (not held;
continued by Jackson)
June 5, 2012 15 15 0
Continued Scheduling Docket June 12, 2012 7 0 7
Preliminary Hearing (held; Jackson
disagreed with counsel's tactics and
requested continuance to hire new
counsel; granted)
July 12, 2012 30 30 0
Scheduling Docket (continued by
Jackson)
July 24, 2012 12 0 12
Continued Scheduling Docket
(continued by Jackson)
August 7, 2012 14 0 14
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Second Continued Scheduling Docket August 14, 2012 7 0 7
Preliminary Hearing (continued by
State; witness had surgery)
September 27, 2012 44 44 0
Scheduling Docket October 2, 2012 5 5 0
Preliminary Hearing (continued by
State; victim not personally served
and did not appear)
October 25, 2012 23 23 0
Continued Preliminary Hearing
(victim again did not appear; warrant
for contempt issued; probable cause
found for Counts II and III; Count I
continued)
January 10, 2013 77 77 0
Pretrial Conference (Jackson
requested plea hearing)
January 18, 2013 8 8 0
Plea Hearing (no plea reached) March 1, 2013 42 0 42
Preliminary Hearing (probable cause
found for Count I; jury trial set for
June 10, 2013, on all counts)
March 21, 2013 20 20 0
Hearing on Motion (Jackson's
attorney withdrew due to conflict;
jury trial cancelled)
June 5, 2013 76 76 0
Pretrial Conference (continued by
Jackson)
June 19, 2013 14 0 14
Continued Pretrial Conference (jury
trial set for September 16, 2013)
July 5, 2013 16 0 16
Jackson moved to continue trial;
granted; continued to November 18,
2013
August 7, 2013 33 0 33
Jury Trial November 18, 2013 103 0 103
Totals: 549 301 248

Approximately 10 months of the delay are attributed to the State.

"In determining whether a defendant's constitutional right to a speedy trial has
been violated by delay between arrest and trial, whether the length of delay is
presumptively prejudicial depends on the peculiar circumstances of each case, and the
mere passage of time is not determinative." State v. Weaver, 276 Kan. 504, Syl. ¶ 3, 78
P.3d 397 (2003). In Weaver, the charge was one count of possession of cocaine with
intent to sell, and the evidence was straightforward. The Weaver court found that "[t]he
tolerable delay for an ordinary crime is less than for a complex one" and a 15-month
delay was presumptively prejudicial. 276 Kan. at 511; but see State v. Hayden, 281 Kan.
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112, 128, 130 P.3d 24 (2006) (13-month delay not presumptively prejudicial when crimes
were second-degree murder, second-degree attempted murder, and aggravated burglary);
Davis, 277 Kan. at 335-36 (15-month delay not presumptively prejudicial when charge
was aggravated kidnapping and attempted rape and competency issues were addressed
before trial); State v. Hill, 257 Kan. 774, 779, 895 P.2d 1238 (1995) (11-month delay not
presumptively prejudicial when charge was four counts of aggravated burglary, three
counts of theft, three counts of rape, two counts of aggravated robbery, and one count of
aggravated kidnapping); State v. Hoffman, No. 98,045, 2008 WL 5401319, at *1 (Kan.
App. 2008) (9-month delay not presumptively prejudicial constitutionally where crime
was driving under influence).

In Rivera, 277 Kan. at 113-14, the Kansas Supreme Court found a 244-day delay
to be presumptively prejudicial where the defendant was charged with aggravated
robbery, conspiracy to commit aggravated robbery, aggravated assault, and theft—serious
yet straightforward crimes. Here, Jackson was charged with aggravated robbery,
aggravated assault of a law enforcement officer, and eluding a police officer. Because
Jackson's charges were not complex, this delay was presumptively prejudicial and weighs
towards a violation of Jackson's constitutional speedy trial right. Therefore, we must
examine the remaining three Barker factors.

B. The reason for the delay

Under the second Barker factor, we evaluate

"the reason[s] the government assigns to justify the delay. Here, too, different weights
should be assigned to different reasons. A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant. Finally, a
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valid reason, such as a missing witness, should serve to justify appropriate delay." 407
U.S. at 531.

Here, the State's brief attributes the delay to the following:

"The State was ready to proceed with all witnesses at the first preliminary hearing [on
July 12, 2012]. The defendant continued the matter over the State's objection. After this
delay, the State had issues with multiple witnesses. But for the defendant's continuance of
the first setting, such delays would not have occurred and the trial could have been held
much sooner . . . . The State had multiple material witness issues at three subsequent
preliminary hearing settings. The first material witness problem was due to Officer Baker
having surgery and [he] was unable to testify. The matter was eventually reset for prelim
in October of 2012. Due to previous cooperation of the victim, there was no indication
that the State needed to compel attendance of Dorsey [the complaining witness] at the
October setting. He failed to appear at that setting. In January 2013, Dorsey was
personally served and failed to appear again. This prompted the issuance of a contempt
warrant to secure Dorsey's appearance. Dorsey complied at the next hearing. Dorsey
appeared in March of 2013 to testify about the aggravated robbery charge."

The reasons given by the State for the delay are adequately reflected in the appearance
docket and record on appeal. In fact, the case was set for a jury trial early on, but 5 days
before the scheduled date, Jackson's retained counsel withdrew due to a conflict. The
district court informed Jackson that any delay because of counsel's withdrawal would be
attributed to Jackson. The withdrawal of Jackson's counsel caused a 166-day delay out of
the total of 248 days of delay attributed to Jackson.

The State's delay of missing material witnesses was a valid delay; therefore, this
factor weighs against a violation of Jackson's constitutional speedy trial right.

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C. Jackson's assertion of his speedy trial right

Under the third Barker factor, we consider whether the defendant asserted his or
her speedy trial right. 407 U.S. at 530. "[F]ailure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial." 407 U.S. at 532.

Jackson asserted his speedy trial right via a pro se motion to dismiss filed on May
9, 2013, and a pro se renewed motion to dismiss filed on May 23, 2013. The State does
not dispute that Jackson asserted his right to a speedy trial. This factor weighs towards a
violation of Jackson's constitutional speedy trial right.

D. Prejudice to Jackson

Finally, we must assess the prejudice Jackson suffered as a result of the delay.
"Prejudice, of course, should be assessed in the light of the interests of defendants which
the speedy trial right was designed to protect." 407 U.S. at 532. Three factors are
considered when evaluating the prejudice to the defendant: "oppressive pretrial
incarceration; the defendant's anxiety and concern; and, most importantly, the impairment
of his or her defense." Rivera, 277 Kan. at 118.

1. Oppressiveness of Jackson's pretrial incarceration

In evaluating the oppressiveness of a defendant's pretrial incarceration, we
consider both the lost time to the defendant and how that lost time impacted the
defendant's ability to adequately prepare a defense:

"The time spent in jail awaiting trial has a detrimental impact on the individual. It often
means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little
or no recreational or rehabilitative programs. The time spent in jail is simply dead time.
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Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence,
contact witnesses, or otherwise prepare his defense. Imposing those consequences on
anyone who has not yet been convicted is serious." Barker, 407 U.S. at 532-33.

In Rivera, 277 Kan. at 119, our Supreme Court found that the defendant was not
oppressively incarcerated because he was being held for a parole violation in California
in addition to the charges in the case. Similarly, Jackson was in custody on a pending
probation violation in addition to the present case; therefore, we conclude that Jackson
was not oppressively incarcerated.

2. Jackson's anxiety and concern

We next consider the amount of anxiety and concern the pending charges and
incarceration caused Jackson. Barker, 407 U.S. at 532. In Rivera, 277 Kan. at 119, the
Supreme Court found that the defendant's repeated involvement with the criminal justice
system overshadowed any anxiety and concern he may have felt. The defendant had a
criminal history score of C, in addition to multiple escapes from custody and parole
violations. Here, Jackson had a criminal history score of B, probation violations, and two
prior person felonies. His experience with the criminal justice system overshadows any
claim he has about being concerned and anxious over the charges in this case.

3. The impairment of Jackson's defense

The most important factor in evaluating whether a defendant was prejudiced by a
lengthy trial delay is whether the lengthy delay impaired the defendant's ability to prepare
a defense because

"the inability of a defendant adequately to prepare his case skews the fairness of the
entire system. If witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall accurately events of the
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distant past. Loss of memory, however, is not always reflected in the record because what
has been forgotten can rarely be shown." Barker, 407 U.S. at 532.

Here, the witnesses did not die or disappear during the delay nor did they have any
issues accurately recalling events. In fact, as the district court stated, the delay may have
even been favorable to Jackson. Dorsey, the alleged victim and complaining witness, was
housed in the same jail pod with Jackson during the delay. Dorsey then submitted an
affidavit recanting his allegations against Jackson. Although he testified contrary to this
affidavit at Jackson's trial, the existence of this affidavit called into question the
credibility of the State's key witness, suggesting that the delay may have actually helped
Jackson's defense. Therefore, we conclude there was no impairment of Jackson's defense
attributable to the delay.

Viewing the Barker factors as a whole, we hold Jackson's constitutional right to a
speedy trial was not violated.

DID THE STATE IMPROPERLY USE PEREMPTORY STRIKES AGAINST
POTENTIAL MINORITY JURORS IN VIOLATION OF BATSON?

Jackson next argues on appeal that the State improperly used half of its
peremptory strikes to remove minority prospective jurors in violation of Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

The United States Supreme Court has held that a state's use of peremptory
challenges must comply with the Fourteenth Amendment to the United States
Constitution, meaning a state may not select or remove prospective jurors from the jury
on the basis of race. 476 U.S. at 89. Challenges to race-based peremptory strikes, referred
to as Batson challenges,

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"are subject to a three-step analysis. Each step is governed by its own standard of review.
[Citations omitted.] Under the first step, 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. [Citation
omitted.] But if that 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.
[Citation omitted.]
"In the third step, the district court determines whether the defendant has carried
the burden of proving purposeful discrimination. This step hinges on credibility
determinations because usually 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.]" State v. McCullough, 293 Kan. 970, 992, 270
P.3d 1142 (2012).

Under the first step of a Batson challenge, a

"defendant need no longer establish that he or she is a member of a cognizable minority
group since the focus is now on the individual rights of jury members not to be excluded
on the basis of race or sex. [Citations omitted.] . . . [I]n order to establish a prima facie
case, the defendant need only show that the prosecution has exercised peremptory
challenges to remove from the venire members of a certain race . . . and that these facts
and any other relevant circumstances raise an inference that the prosecutor used that
practice to exclude the jurors from the jury on account of their race or gender." State v.
Edwards, 264 Kan. 177, 193-94, 955 P.2d 1276 (1998).

A '"pattern'" of strikes against minority jurors is a relevant circumstance that may give
rise to an inference of purposeful discrimination. Batson, 476 U.S. at 97.

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To establish his prima facie case, Jackson argues that prospective jurors 8, 18, 21,
and 30 were struck on the basis of their race. Jurors 18, 21, and 30 identified as black and
juror 8 identified as black and white. Of the State's eight total peremptory strikes, three
identified as black, one identified as black and white, one identified as Hispanic, and
three identified as white. Because the State used its peremptory challenges equally
between minority and nonminority potential jurors, Jackson has not established a prima
facie case that the State used its peremptory challenges improperly on the basis of race.
The State did not commit a Batson violation.

On appeal, Jackson also discusses the use of peremptory challenges on Hispanic
prospective jurors. However, this issue was not raised before the district court.

"Although ordinarily appellate courts will not consider an issue which the parties
do not raise in the district court or on appeal, the court does have power to do so in
exceptional circumstances where consideration of the new issue is necessary to serve the
interests of justice or to prevent a denial of fundamental rights." State v. Bell, 258 Kan.
123, Syl. ¶ 1, 899 P.2d 1000 (1995).

Here, the exclusion of the one Hispanic prospective juror does not affect our conclusion
that the State did not commit a Batson violation.

DID THE DISTRICT COURT ERR IN LIMITING JACKSON'S DIRECT EXAMINATION
AND CROSS-EXAMINATION OF WITNESSES?

Next Jackson argues that the district court erred when it limited the direct
examination of Detective Garrison and the cross-examination of Dorsey, the complaining
witness.

The trial court controls the scope of cross-examination, and "a district court
judge's 'decision to limit cross-examination is reviewed using an abuse of discretion
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standard.'" State v. Parks, 294 Kan. 785, 797, 280 P.3d 766 (2012) (quoting State v.
Corbett, 281 Kan. 294, 307-08, 130 P.3d 1179 [2006]). "Judicial discretion can be abused
in three ways: (1) if no reasonable person would have taken the view adopted by the trial
court; (2) if the judicial action is based on an error of law; or (3) if the judicial action is
based on an error of fact." State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

"A party being limited by the exclusion of evidence must sufficiently proffer the
substance of the evidence to preserve the issue on appeal." State v. Swint, 302 Kan. 326,
332, 352 P.3d 1014 (2015); see K.S.A. 60-405. "Failure to make a proffer of excluded
evidence precludes appellate review because there is no basis to consider whether the
trial court abused its discretion." State v. Hudgins, 301 Kan. 629, 651, 346 P.3d 1062
(2015).

However, "no formal proffer is required if an adequate record [sufficiently]
discloses the evidence sought to be introduced. Answers to discovery, the parties'
arguments, or in-court dialogue" may be a sufficient proffer depending on the
circumstances. Swint, 302 Kan. at 332. Our Supreme Court "has considered information
made known both contemporaneously with the trial court's ruling and provided after the
trial has concluded" when assessing the adequacy of a proffer of excluded evidence. 302
Kan. at 332-33.

A. The Cross-Examination of Dorsey

Jackson argues that the limitation of his cross-examination of Dorsey excluded
relevant evidence in violation of his right to confront the witness testifying against him,
guaranteed to him by the Sixth Amendment to the United States Constitution and § 10 of
the Kansas Constitution Bill of Rights.

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Dorsey was previously convicted of burglary in a completely unrelated matter.
Jackson requested that he be allowed to ask Dorsey about this conviction and use the
evidence to question his credibility. The district court permitted Dorsey to be questioned
about the burglary for impeachment purposes should the occasion arise at trial. Jackson
sought to question Dorsey on the terms of his sentence in the unrelated burglary case at
trial. Before trial, the following exchange regarding the cross-examination of Dorsey
occurred between the district court, the State, and Jackson's counsel:

"MR. WILLIAMS: Judge, on the burglary plea by the alleged victim, he got a
departure and part of the reason was he provided cooperation, and I believe that's in this
case.
"[THE STATE]: Go ahead. Make your record and I'll respond.
"MR. WILLIAMS: Judge, he was B history on the level 7 burglary. He should
have been prison bound, but they agreed to probation in this case. I would like to show
that to the jury.
"[THE STATE]: And judge, this is—the journal entry that he's requesting to
admit is the same journal entry that we talked about earlier. I think the defense attorney,
Mr. Williams, can confront the victim about that and impeach him. If he denies it, he
can—he can maybe get it in through evidence there, but same objection as before.
"I will state for the record that the plea agreement for the victim in his burglary
and theft case didn't have anything to do with cooperation in this case. Now, it could be at
sentencing his defense attorney said he's been really helpful or something like that. So
they threw that in as another reason amongst several other reasons that are in that journal
entry.
"I'm not sure what happened at sentencing, but I'm fairly confident that . . . it was
not a bargained for agreement. And Mr. Williams, of course, can try to cross-examine as
to that, but that's my record.
"MR. WILLIAMS: And Judge, for the record, I would start out with cross-
examination. I don't intend to just—
"THE COURT: I think as long as if he admits he has a—he pled guilty or was
convicted of burglary, that's where it ends. And I don't think you can go into the plea
agreement somebody got in a totally unrelated case, unless you somehow have—can
produce evidence to present to the Court and not as part of questioning that it was
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somehow directly related to this particular case. I don't think you can get into the
underlying plea of a totally collateral matter.
"MR. WILLIAMS: And Judge, just for the record, I do recall that that burglary
case had a codefendant. So it could be, you know, that he provided cooperation against
the codefendant in that case. All we've got in that journal entry is 'provided cooperation.'
"THE COURT: That's got nothing to do with this case, if he's the victim in this
case—or the alleged victim in this case."
"[THE STATE]: Right.
"THE COURT: I think it would be different, obviously, if he was a codefendant
in this case and was testifying, and obviously all of the terms of whatever plea he entered
for the State to secure his testimony to testify against the codefendant would clearly be
admissible. But I think this is a totally collateral matter.
"MR. WILLIAMS: Okay. And Judge, I understand and respect the Court's
ruling. I will conduct myself accordingly. I may put the State on notice. I don't intend to
do this now but . . . I may add [the defense lawyer and the prosecutor] to the witness list
because of this.
"THE COURT: You can go talk to them if you want but we'll see.
"MR. WILLIAMS: Okay. Nothing further, Your Honor."

Jackson's counsel made no other proffer of evidence as to what Dorsey's possible
testimony would include, nor did he provide any evidence to the district court about the
alleged link between Dorsey's sentencing in a completely unrelated case, in which he was
the codefendant, and his testimony in this case, in which he was the victim. The only
evidence presented that could be considered a proffer, formal or informal, is two of
Jackson's counsel's conflicting statements that (1) "he got a departure and part of the
reason was he provided cooperation, and I believe that's in this case," and (2) "I do recall
that that burglary case had a codefendant. So it could be, you know, that he provided
cooperation against the codefendant in that case. All we've got in the journal entry is
'provided cooperation.'" The district court ruled that Jackson could not question Dorsey
on the events surrounding his sentence in the unrelated case unless Jackson could provide
evidence that the two cases were related.

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After this ruling, Jackson's counsel did not provide the district court with any more
information connecting Dorsey's sentence in his completely unrelated case and his
testimony as a victim in Jackson's case. There is no true disclosure on the record of the
evidence Jackson sought to be introduced by Dorsey except the two conflicting
statements from Jackson's attorney. There is no record of what, if anything, came from
the discussion between Jackson's counsel, the prosecutor, and Dorsey's counsel in
Dorsey's burglary case. Based on the information provided in the record, it is impossible
to know what the content of this testimony would have been, and there is no basis to
consider whether the trial court abused its discretion. See Hudgins, 301 Kan. at 651.
Therefore, this issue is not properly preserved for appeal.

B. The Direct Examination of Garrison

Jackson also argues the district court erred in preventing him from exposing
Garrison's lack of knowledge on direct examination. The State argues that Jackson has
abandoned this issue on appeal. Jackson's brief presents no argument on this issue and
only mentions this argument in passing twice. He first mentions this argument stating:
"Mr. Jackson argues that by preventing him from cross-examining . . . Garrison on her
investigation, the district court excluded relevant evidence, which violated his right to
confront the witnesses testifying against him . . . ." Jackson next mentions this for the
second and last time, stating: "Here, the district court limited cross-examination of two of
the State's witnesses: Dorsey and Garrison. Doing so prevented Mr. Jackson from truly
confronting the witnesses against him, and from exposing Dorsey's bias and Garrison's
lack of knowledge." The direct examination of Garrison is not mentioned again, and
Jackson does not respond to the State's argument that he abandoned this issue on appeal
in his reply brief.

"When a litigant fails to adequately brief an issue it is deemed abandoned." State
v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). Jackson's argument that the district
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court improperly limited the direct examination of Garrison is merely raised incidentally;
therefore, we consider it abandoned.

DID THE DISTRICT COURT ERR IN ADMITTING EVIDENCE OF OTHER CRIMES?

At trial, the district court admitted two police in-car videos over Jackson's
objection. These videos showed the events immediately after Jackson stole Dorsey's car.
Jackson argues that the district court erred when it admitted these videos because he pled
guilty to the crimes of eluding a police officer and aggravated assault on a law
enforcement officer. Jackson claims the videos were evidence of other crimes and, thus,
inadmissible under K.S.A. 2015 Supp. 60-455.

K.S.A. 2015 Supp. 60-455 provides in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
evidence is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident."

Although the old rule of res gestae no longer serves as an independent basis of
admission of evidence, evidence of other crimes committed during the surrounding
circumstances of the crime charged is not automatically inadmissible; "rather, if the
evidence is relevant it can be admitted unless a rule of evidence prevents its admission.
See K.S.A. 60-407 ('Except as otherwise provided by statute . . . (f) all relevant evidence
is admissible.')." State v. King, 297 Kan. 955, 964, 305 P.3d 641 (2013). "'K.S.A. 60-455
does not prohibit the admission of evidence regarding other crimes and civil wrongs if the
19

evidence relates to acts committed as part of the events surrounding the crimes or civil
wrongs at issue in the trial.'" State v. Charles, 304 Kan. 158, 175-76, 372 P.3d 1109
(2016) (quoting King, 297 Kan. 955, Syl. ¶ 1).

Here, the evidence the district court admitted was evidence of Jackson's actions
mere moments after Jackson stole Dorsey's vehicle. Based on the testimony at trial and
the jury's guilty verdict, Jackson robbed Dorsey of his car at gunpoint. During the
robbery, someone yelled, "Police." Dorsey, seeing an officer in the area, went
immediately to him and reported that his car had just been stolen at gunpoint and pointed
out his car as Jackson drove it away. Law enforcement in Kansas City, Kansas, chased
the stolen vehicle until law enforcement in Kansas City, Missouri, took over the chase.
Law enforcement's pursuit of Jackson ended when the stolen vehicle ran out of gas in
front of the Kansas City, Missouri, police station. Jackson was taken into custody and
while doing so assaulted a law enforcement officer.

The district court ruled that the videos of Jackson eluding police and assaulting a
law enforcement officer went to prove Jackson's intent to commit aggravated robbery.
We agree. These events do not depict prior crimes; rather, this is evidence of the
surrounding circumstance of Jackson's crime and these events occurred as part of the
crime charged. See Charles, 304 Kan. at 175; King, 297 Kan. at 964. Thus, this evidence
is not K.S.A. 2015 Supp. 60-455 evidence.

Jackson's related argument that a limiting instruction should have been given
concerning this evidence is also without merit as we have concluded that the evidence did
not constitute prior bad acts evidence under K.S.A. 2015 Supp. 60-455.

20

DID THE DISTRICT COURT ERR BY FAILING TO GIVE
A LESSER INCLUDED OFFENSE JURY INSTRUCTION?

Next Jackson argues that the district court erred when it failed to give a jury
instruction for robbery, a lesser included offense of aggravated robbery. The State in
response argues that this jury instruction was not factually appropriate and, thus, the
district court did not err.

"'For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, 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 district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).'" State v. Woods,
301 Kan. 852, 876, 348 P.3d 583 (2015) (quoting State v. Plummer, 295 Kan. 156, Syl.
¶ 1, 283 P.3d 202 [2012]).

When the failure to give a lesser included offense jury instruction is challenged on
appeal, we apply the same analytical framework as in Woods and must first determine if
the issue was properly preserved. See State v. Armstrong, 299 Kan. 405, 432, 324 P.3d
1052 (2014).

"K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on
appeal. It provides that no party may assign as error a district court's giving or failure to
give a particular jury instruction, including a lesser included crime instruction, unless: (a)
that party objects before the jury retires to consider its verdict, stating distinctly the
matter to which the party objects and the grounds for objection; or (b) the instruction or
the failure to give the instruction is clearly erroneous. If an instruction is clearly
21

erroneous, appellate review is not predicated upon an objection in the district court."
State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).

At trial, after the presentation of the evidence and outside of the presence of the
jury, the following interaction occurred between the district court, the State, and
Jackson's counsel when the parties were asked if they had any objection to the district
court's proposed jury instructions:

"THE COURT: Any objections to the instructions as prepared?
"MR. WILLIAMS: No.
. . . .
"MR. WILLIAMS: Judge, I assume that—I didn't hear you, but you're not
submitting LIO's on this?
"THE COURT: I don't know what an LIO is.
"MR. WILLIAMS: A lesser included offense.
"THE COURT: Oh. Well, you haven't asked for any. Do you think any should
be given?
"MR. WILLIAMS: There was—there is evidence to support there was no gun.
"THE COURT: I don't think there is. What are you asking for?
"MR. WILLIAMS: Well, Judge, my client does not want me to ask for robbery,
but that would be—
"THE COURT: Robbery can be a lesser, but robbery is not always a lesser.
Robbery is given if there is evidence to support a robbery charge. So say, for example,
and I think in this type of situation I think it would be if, say, somebody had their hand in
their pocket and they didn't actually see a gun, robbery may be justified. If it wasn't a
firearm, if it was some other type of weapon, it might be justified. But in this particular
case the evidence is undisputed that firearms were involved, and on that basis I don't
think I have to give a lesser.
"MR. WILLIAMS: I understand, Your Honor.
"THE COURT: And you said he doesn't want robbery anyway?
"MR. WILLIAMS: That's correct, Your Honor.
"THE COURT: Anything from the State?
22

"[THE STATE]: Judge, I agree that robbery in this case is not factually
appropriate because the only testimony that there was a crime committed was from the
victim, and he said that the defendant had the gun. So if there was a crime committed, it
was an aggravated robbery, not a robbery.
"THE COURT: Okay."

Here, not only did Jackson not object to the lack of a lesser included offense jury
instruction, but Jackson's counsel also specifically told the district court he did not want a
jury instruction for the lesser included offense.

In State v. Angelo, 287 Kan. 262, 278-80, 197 P.3d 337 (2008), our Supreme
Court held that a defendant cannot complain on appeal of a district court's action when
the defendant invited and led the district court into error by requesting the court not give
a lesser included offense instruction even in light of a district court's duty to instruct on
all lesser included offenses reasonably justified by the evidence presented at trial. The
Angelo court further noted: "[A] denial of relief is particularly appropriate where [the
defendant] twice told the court personally that he did not want the instruction, even after
acknowledging that he could not appeal from the consequences of his decision." 287 Kan.
at 280.

Here, although Jackson did not personally tell the district court he did not want the
jury instruction, Jackson's counsel twice told the district court his client did not want a
jury instruction for robbery. In accordance with Angelo, 287 Kan. at 280, a defendant
cannot state he or she does not want a jury instruction for a lesser included offense and
then complain about the lack of such jury instruction on appeal. See also State v. Verser,
299 Kan. 776, 784, 326 P.3d 1046 (2014) (litigant may not invite error then complain of
error on appeal). Because Jackson invited this error, the district court did not err in failing
to give a jury instruction on the lesser included offense of robbery.

23

DID CUMULATIVE ERRORS DEPRIVE JACKSON OF A FAIR TRIAL?

Finally, Jackson argues that because of the numerous errors he claims were
committed by the trial court, cumulative error resulted and necessitates reversal of his
conviction. Unfortunately for Jackson, "'[c]umulative error will not be found when the
record fails to support the errors raised on appeal by the defendant.'" State v. Novotny,
297 Kan. 1174, 1191, 307 P.3d 1278 (2013) (quoting State v. Cofield, 288 Kan. 367, 378,
203 P.3d 1261 [2009]). Because we find no errors in Jackson's conviction, there is no
cumulative error here.

Affirmed.