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1

NOT DESIGNATED FOR PUBLICATION

No. 113,044

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JALEN J. JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed March 4, 2016.
Affirmed.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.

Per Curiam: Jalen J. Jones appeals his convictions of attempted first-degree
murder and aggravated battery. Jones claims the district court erred when it denied his
requests to instruct the jury on defense of a person and the lesser offense of attempted
voluntary manslaughter. He also raises constitutional challenges to Kansas' criminal
restitution scheme for the first time on appeal. For the reasons set forth herein, we affirm
the district court's judgment.


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FACTUAL AND PROCEDURAL BACKGROUND

On the evening of August 24, 2013, Chandria Young was spending time at the
house of her friend, Autumn Ashlock. Later that night, the two women were joined by
three men, Quentin Lawrence, also known as Ratchet; Daijour Parker, also known as DP;
and Dominque Gordon, also known as Bully. The three men were members of the Piru
Blood gang. Young was in a relationship with Gordon, and Ashlock was in a relationship
with Lawrence.

Eventually, Ashlock drove the group to QuickTrip to purchase cigarettes. While at
QuickTrip, Gordon saw Young talking to Aquarius Hurt, who was a member of a rival
gang called the Gangster Disciples, or GDs. Gordon approached Hurt. The two men
exchanged insults, and Gordon eventually punched Hurt in the face. Young, Ashlock,
Parker, and Lawrence grabbed Gordon, placed him into their car, and the group returned
to Ashlock's house.

After the incident at QuickTrip, Hurt called Jones, his brother, and told him what
had happened. Jones was with his friend, Joshua Grier. Hurt said that he was mad about
the incident and asked Jones and Grier to come pick him up. Grier, who was driving his
gray Taurus, agreed to do so. Jones was carrying a .40 Hi-Point semiautomatic gun, and
Grier had a .380 Bersa, also a semiautomatic weapon.

Jones, Hurt, and Grier initially drove to Young's house to try to find Gordon, but
no one was there. The three men then proceeded to drive to Ashlock's house. Ashlock,
Young, Lawrence, Parker, and Gordon were sitting on Ashlock's porch when Grier,
Jones, and Hurt pulled up in the street in front of the house. All three men immediately
got out of Grier's car. The two women, Ashlock and Young, initially approached the men.
Hurt eventually told Lawrence, Parker, and Gordon to come to the street. Hurt said
something about finishing what they had started at QuickTrip.
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Lawrence, Parker, and Gordon came down to the street. At this time, Jones and
Hurt were standing toward the back of the car on the passenger side. Gordon approached
Grier and the two men squared off to fight, but Young and Ashlock tried to stop the
altercation from becoming physical. As this occurred, Lawrence was standing in front of
a white truck parked in the street; Parker also was standing in the street. Neither
Lawrence nor Parker got involved in the altercation between Gordon and Grier.
Lawrence, Parker, and Gordon were unarmed. As Young and Ashlock continued their
efforts to separate Gordon and Grier, numerous gunshots were fired in rapid succession.
Young saw two shooters firing from behind Grier's vehicle, where Jones and Hurt had
been standing. Ashlock, meanwhile, saw that Jones and Hurt were, in fact, the shooters.

Lawrence was struck by five of the gunshots; he was shot twice in the arm, and
once each in the neck, stomach, and back. From Young's vantage point, she could see that
at least some of the shots were fired at Lawrence after he was already lying on the
ground. After the shooting stopped, Grier, Jones, and Hurt fled the scene in Grier's car.
Young and Parker ran to Lawrence and used shirts to apply pressure to his neck to control
the bleeding.

After fleeing the scene of the shooting, Jones, Hurt, and Grier met up with
Tenacious Sargent, Jones and Hurt's mother. Jones and Hurt were each holding a gun.
Jones told his mother, "We did something and I'm sorry." Sargent eventually took the
guns, placed them in a plastic bag, and hid them in a vacant garage down the street.

Jones, Hurt, and Grier next went to the house of their friend, Mikalia Smith. The
men woke up Smith, and Jones asked her to say that the men had been at her house since
10 p.m. All three men showered and changed clothes at Smith's house. Sargent also came
to Smith's house and told her to tell police that Jones, Grier, and Hurt had been at the
house since 10 p.m. eating pizza, watching television, and playing video games.

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Later, police arrived and transported everyone to the police station. Sargent
eventually informed police of the location of the guns and took them there. Crime scene
investigators recovered the plastic bag from the garage. In the bag, investigators found a
.380 Bursa and a .40 Hi-Point semiautomatic weapons with ammunition for each gun.
Investigators later conducted firearm analysis on the weapons and the shell casings that
were recovered at the scene of the shooting. Four of the shell casings that were recovered
were fired from the .40 caliber Hi-Point. Six other shell casings that were recovered were
fired from the .380 Bursa. A bullet that was recovered from the pool of blood where
Lawrence was lying was fired from the .380 Bursa. A bullet that was recovered from
Lawrence's body also was fired from the .380 Bursa.

The State ultimately charged Jones with attempted first-degree murder and
aggravated battery. At trial, Jones testified on his own behalf. Jones testified that when
he, Grier, and Hurt arrived at Ashlock's house, he initially stayed inside Grier's car.
According to Jones, Grier and Gordon squared up, "acting like they're going to fight."
Jones claimed that it was at this point that he first exited the car. He testified that he
walked to the back of the car, holding the .40 caliber gun behind his back. As Jones stood
at the rear of the car, Lawrence asked him if he was Scarface, a reference to Jones'
nickname. At that point, Gordon said, "If that's Scarface, shoot him down."

Jones testified that he was not paying attention to Lawrence at the time, as he was
instead focused on the confrontation between Gordon and Grier. Jones claimed that
Young began pushing Grier toward the Taurus, so Jones began backpedaling toward the
car as well. Jones testified that he, Young, Ashlock, and Hurt all yelled for Grier to get in
the car. Jones acknowledged that he never saw any of the other men with guns, but he
testified that Lawrence and Parker had their hands in their pants as if they had guns.

Jones testified that he started the engine of the Taurus. He claimed that Hurt
already was in the car by this point. As Grier was trying to get inside the car, Jones saw
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his head move towards him. Jones thought that Gordon had hit Grier, so he got out of the
car carrying both the .40 caliber and the .380 caliber guns.

Jones testified that he opened fire with both guns. According to Jones, he was not
trying to hit anyone; instead he was aiming at a white truck, which is where he had seen
Lawrence standing with his hands in his pants. Jones testified that he fired the .40 caliber
gun until it jammed, at which point he started shooting the .380 caliber weapon. He
testified that people began running when he started shooting, and he stated that he
continued firing as they fled. When asked why he kept shooting, Jones replied that he
"just wanted them to leave." Jones reiterated that he did not intend to shoot anyone. On
cross-examination, Jones acknowledged that he initially exited the Taurus with his .40
caliber gun before any threats had been made against him. He also admitted that no one
ever pulled a gun on him or struck him at the scene of the shooting.

At the jury instruction conference, Jones requested an instruction on defense of a
person. However, the district court ruled that the instruction was not supported by the
evidence. The district court instructed the jury on the lesser offense of attempted second-
degree murder. Jones also requested a jury instruction on the lesser offense of attempted
voluntary manslaughter. However, the district court ruled that the evidence did not
support an instruction on that charge.

The jury convicted Jones of attempted first-degree murder and aggravated battery.
The district court sentenced Jones to 176 months' imprisonment for the attempted murder
conviction and 41 months' imprisonment for the aggravated battery conviction, with the
sentences to run concurrently. The district court also ordered Jones to pay restitution in
the amount of $2,662. Jones did not object to the imposition of or the amount of
restitution. Jones timely appealed the district court's judgment.


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JURY INSTRUCTION ON DEFENSE OF A PERSON

Jones first claims the district court erred when it denied his request to instruct the
jury on defense of a person. Jones argues that when the evidence is viewed in the light
most favorable to him, he was acting in defense of himself or Grier when he started
shooting. Jones argues that his use of deadly force was justified because his life had been
threatened during the altercation between Gordon and Grier, and Jones' retreat to Grier's
car before he started shooting did not take away the immediacy of the threat.

The State argues that the district court did not err because giving a defense of
person instruction would have been factually inappropriate. First, the State argues that the
instruction was factually inappropriate because Jones was the initial aggressor since he
went to Ashlock's house to start a fight and he had his gun out before any fight started.
Second, the State argues the instruction was factually inappropriate because Jones, Grier,
and Hurt were engaged in mutual combat with Parker, Lawrence, and Gordon. Third, the
State argues the instruction was factually inappropriate because the evidence did not
support both a subjective and objective belief by Jones that deadly force was necessary to
defend Jones or another person against the imminent use of deadly force.

In analyzing jury instruction issues, appellate courts employ a multistep standard
of review:

"'(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.
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denied 132 S. Ct. 1594 (2012).' [Citation omitted.]" State v. Woods, 301 Kan. 852, 876,
348 P.3d 583 (2015).

A criminal defendant generally is entitled to instructions on the law applicable to
his or her theory of defense if there is sufficient evidence for a rational factfinder to find
for the defendant on that theory. If the defendant requests an instruction at trial, the court
must review the evidence in the light most favorable to the defendant. State v. Hilt, 299
Kan. 176, 184, 322 P.3d 367 (2014).

Apply the four-step analysis, we first note that Jones requested the instruction on
defense of a person at trial preserving the issue for appeal. Second, neither party disputes
the fact that a defense of person instruction is legally appropriate in a murder or
attempted murder prosecution. State v. Knox, 301 Kan. 671, 677-78, 347 P.3d 656
(2015).

The determinative issue is whether a defense of person instruction is factually
appropriate in this case. A requested instruction on defense of a person is factually
appropriate if there is sufficient evidence, when viewed in the light most favorable to the
defendant, for a rational factfinder to find for the defendant on that theory. State v. Story,
300 Kan. 702, 710, 334 P.3d 297 (2014). Sufficiency is examined against the legal
elements of defense of a person, which are defined in K.S.A. 2015 Supp. 21-5222. Under
that statute, the use of force can only be justified to the extent a person "reasonably
believes that such use of force is necessary to defend such person or a third person
against such other's imminent use of unlawful force." K.S.A. 2015 Supp. 21-5222(a). The
use of deadly force, meanwhile, can only be justified to the extent a person "reasonably
believes deadly force is necessary to prevent imminent death or great bodily harm to such
person or a third person." K.S.A. 2015 Supp. 21-5222(b). These subsections establish a
two-part test, the first of which is subjective, as it requires a showing that the defendant
sincerely and honestly believed the use of deadly force in defense of a person was
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necessary. The second part is objective, as it requires a showing that a reasonable person
in the defendant's circumstances would have perceived the use of deadly force in defense
of a person was necessary. State v. Salary, 301 Kan. 586, 593-94, 343 P.3d 1165 (2015).

K.S.A. 2015 Supp. 21-5226(c), however, provides that an aggressor, i.e., one who
initially provokes the use of force against himself or herself, may claim self-defense
under K.S.A. 2015 Supp. 21-5222 only in limited circumstances. The statute reads in
relevant part:

"The justification described in . . . K.S.A. [2015 Supp.] 21-5222 . . . is not
available to a person who:
. . . .
"(c) otherwise initially provokes the use of any force against such person or
another, unless:
(1) Such person has reasonable grounds to believe that such person is in
imminent danger of death or great bodily harm, and has exhausted every reasonable
means to escape such danger other than the use of deadly force; or
(2) in good faith, such person withdraws from physical contact with the assailant
and indicates clearly to the assailant that such person desires to withdraw and terminate
the use of such force, but the assailant continues or resumes the use of such force."
K.S.A. 2015 Supp. 21-5226(c).

Jones argues that the district court erred in denying his request to instruct on
defense of a person. In his packet of proposed instructions, Jones requested that the
district court instruct the jury on defense of another. However, at the jury instruction
conference, Jones focused solely on self-defense. Jones argued that the instruction was
appropriate because there was evidence that Lawrence and Parker had their hands in their
pants as if they might be holding guns and Gordon told Lawrence to shoot Jones if he
was Scarface. There was also evidence at trial that earlier in the day Lawrence had made
documented efforts to obtain a gun.

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Even considering the evidence in the light most favorable to Jones, we agree with
the district court that a jury instruction on defense of person would have been factually
inappropriate in this case. First, the evidence showed that Jones was an initial aggressor.
After hearing what had happened at the QuickTrip, Jones, Hurt, and Grier went to two
locations in order to locate the man who had punched Jones' brother. While Jones claims
that he had no intention of starting a fight, his own testimony showed that he held a
loaded gun behind his back when he stepped out of the car upon arriving at Ashlock's
house. In other words, Jones had the weapon in his hand before Gordon allegedly made a
threatening comment and before Jones claimed to have seen Lawrence and Parker with
their hands in their pants. In such circumstances, Jones was the aggressor as identified by
K.S.A. 2015 Supp. 21-5226 and was not entitled to a self-defense instruction.

Moreover, the instruction was not appropriate because, at a minimum, Jones, Hurt,
and Grier willingly engaged in mutual combat with Lawrence, Parker, and Gordon.
Mutual combat has been defined as one into which both the parties enter willingly or
voluntarily; it implies a common intent to fight, but not necessarily an exchange of blows.
State v. Coop, 223 Kan. 302, 306, 572 P.2d 1017 (1978) (quoting Black's Law Dictionary
332-33 [Rev. 4th ed. 1968]). In State v. McCullough, 293 Kan. 970, 975-76, 270 P.3d
1142 (2012), our Supreme Court stated:

"The doctrine of self-defense cannot excuse a killing done when the defendant
willingly engaged in mutual combat unless the defendant has withdrawn in good faith
and done everything in the defendant's power to avert the necessity of the killing.
[Citation omitted.] This rule does not destroy the right to self-defense in all mutual
combat cases; but for self-defense to justify the killing, the defendant must be acting
'solely for the protection of [the defendant's] own life, and not to inflict harm upon [the
defendant's] adversary.' [Citations omitted.]"

Furthermore, a jury instruction on defense of person would have been factually
inappropriate because the evidence does not support both a subjective and objective
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belief by Jones that deadly force was necessary to defend himself against the imminent
use of deadly force by another. The evidence was undisputed that Lawrence, Parker, and
Gordon were unarmed, and Jones never saw the men display any weapons. All Jones saw
was that Lawrence and Parker had their hands in their pants, and the evidence showed
that the two men were dressed in gym shorts. Even after Jones allegedly heard Gordon
say, "If that's Scarface, shoot him," Jones did not subjectively believe that the use of
deadly force was necessary to defend himself. Jones testified that he was not paying
attention to Lawrence at the time, as he was instead focused on the confrontation between
Gordon and Grier. In other words, after hearing the threat, Jones simply continued to
watch Gordon and Grier circle each other in the street.

Jones testified that he eventually made his way back toward the car as Ashlock
and Young tried to separate Gordon and Grier. Jones testified that he, Young, Ashlock,
and Hurt all yelled for Grier to get in the car. According to Jones, it was not until he
thought he saw Gordon hit Grier that he got back out of the car with the two guns and
started shooting.

But the main reason a defense of person instruction would have been factually
inappropriate in this case is because Jones unequivocally testified that he never intended
to shoot anyone. Our Supreme Court has held that a defendant cannot unintentionally act
in self-defense. State v. Collins, 257 Kan. 408, 419, 893 P.2d 217 (1995). Self-defense is
the intentional use of reasonable force to fend off an attacker. State v. Bradford, 27 Kan.
App. 2d 597, Syl. ¶ 4, 3 P.3d 104 (2000). As this court has previously stated, "a victim
acting in self-defense intends to inflict injury on the attacker." Manning v. State, No.
105,699, 2012 WL 3289951, at *3 (Kan. App. 2012) (unpublished opinion) (citing
Bradford, 27 Kan. App. 2d at 602).

Jones testified that he did not intend to shoot anyone. Instead, Jones testified that
he just wanted people to go away. That is why he fired his weapons at the white truck and
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he did not fire directly at Lawrence or Parker. Jones' testimony that he was not trying to
hit anyone with the shots is logically inconsistent with a claim that he subjectively
believed deadly force was necessary. Therefore, the district court did not err when it
denied Jones' request for a defense of person instruction.

LESSER OFFENSE OF ATTEMPTED VOLUNTARY MANSLAUGHTER

Next, Jones claims the district court erred when it denied his request to instruct the
jury on the lesser offense of attempted voluntary manslaughter. Jones argues an
instruction on attempted voluntary manslaughter was appropriate because he had an
honest but unreasonable belief that the use of deadly force was justified. The State argues
that this instruction was inappropriate because Jones was the initial aggressor and the
evidence showed that Jones did not have a subjective fear that his life was in danger.

We previously set forth the multistep standard of review in analyzing jury
instruction issues. Voluntary manslaughter is a lesser offense of premeditated first-degree
murder. As such, Jones' request for an instruction on attempted voluntary manslaughter
was legally appropriate. This type of voluntary manslaughter is a knowing killing of a
human being committed "upon an unreasonable but honest belief that circumstances
existed that justified use of deadly force." See K.S.A. 2015 Supp. 21-5404(a)(2). K.S.A.
2015 Supp. 22-3414(3) requires lesser included offense instructions "where there is some
evidence which would reasonably justify a conviction of some lesser included crime."

Jones' argument for a jury instruction on the lesser offense of attempted voluntary
manslaughter fails for much the same reasons as his argument for a jury instruction on
self-defense. The evidence at trial showed that Jones was the initial aggressor in the
incident that occurred outside Ashlock's house. But more importantly, Jones
unequivocally testified that he never intended to hit anybody with the gunshots; he only
fired the shots because he wanted Gordon, Lawrence, and Parker to leave. As previously
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discussed, Jones' testimony that he was not trying to hit anyone with the shots is logically
inconsistent with a claim that he subjectively believed deadly force was necessary. This
lack of intent to injure anyone precludes a claim of self-defense and thereby precludes a
claim of imperfect self-defense. Thus, the district court did not err when it denied Jones'
request to instruct the jury on the lesser offense of attempted voluntary manslaughter.

Jones also claims that he was denied a fair trial based on the cumulative effect of
the two instructional errors. The test for cumulative error is whether the totality of the
circumstances establishes that the defendant was substantially prejudiced by cumulative
errors and was denied a fair trial. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).
However, the court will find no cumulative error when the record fails to support any of
the errors the defendant raises on appeal. State v. Santos-Vega, 299 Kan. 11, 27-28, 321
P.3d 1 (2014). For the reasons we have discussed, the district court did not err when it
denied Jones' requested jury instructions. Because the record does not support any error,
Jones is not entitled to relief under his claim of cumulative error.

CONSTITUTIONAL CHALLENGES TO RESTITUTION

Next, Jones argues that the Kansas criminal restitution scheme violates § 5 of the
Kansas Constitution Bill of Rights because it encroaches on a criminal defendant's right
to a civil jury trial to determine restitution. The State asserts that Jones should be
prohibited from raising this argument on appeal because he did not raise it before the
district court and, in the alternative, the argument is without merit.

Determining a statute's constitutionality is a question of law subject to unlimited
review. The appellate courts presume statutes are constitutional and must resolve all
doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes
it constitutional if there is any reasonable construction that would maintain the
legislature's apparent intent. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).
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Specifically, Jones argues that § 5 of the Kansas Constitution Bill of Rights
preserves the right to a jury trial as it existed at common law when the Kansas
Constitution was enacted. At common law, tort actions were triable to a jury and this
included jury findings of causation and damages. Jones argues that the legislature
abridged this right to a jury trial for tort actions by permitting victims of crimes to bypass
a jury trial and receive a monetary judgment from a defendant through a court order of
restitution under K.S.A. 2015 Supp. 21-6604(b)(1). According to Jones, the legislature
may abridge the constitutional right to a jury trial only if it complies with the quid pro
quo test. Jones argues that K.S.A. 2015 Supp. 21-6604(b)(1) violates the quid pro quo
test because the legislature did not substitute any benefit to criminal defendants in return
for stripping their right to have a jury determine their liability for and the amount of
monetary damages to crime victims.

Constitutional grounds for reversal asserted for the first time on appeal are not
properly before an appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043, 350
P.3d 1068 (2015). However, there are three exceptions to this rule: (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 the 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).

Jones acknowledges that he did not raise his argument before the district court.
However, Jones argues that this court should still review the merits of his claim because
it only involves a question of law arising on proved or admitted facts and is finally
determinative of the case. He further argues that consideration of the claim is necessary
to serve the ends of justice or to prevent a denial of his fundamental rights.

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We disagree with Jones that either of these exceptions is applicable. The first
exception does not apply because the determination of Jones' restitution claim is not
finally determinative of the case. The second exception does not apply because it cannot
be argued that consideration of the issue is necessary to serve the ends of justice or to
prevent a denial of fundamental rights when Jones did not even object to the imposition
of or the amount of restitution at sentencing. See United States v. Dudley, 739 F.2d 175,
179 (4th Cir. 1984) (appellate court refused to consider restitution issue for first time on
appeal when defendant failed to object to restitution in district court). Therefore, we
reject Jones' constitutional issue as not properly preserved for appellate review.

In a related issue, Jones argues that Kansas' criminal restitution scheme violates
the ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). Again, Jones failed to raise this issue before the district court, and we find no
applicable exception to address the issue for the first time on appeal. Although we decline
to address the merits of Jones' claim, we note in passing that this court previously has
held that the imposition of restitution in a criminal case does not implicate Apprendi. See
State v. Huff, 50 Kan. App. 2d 1094, 1103-04,336 P.3d 897 (2014), rev. denied 302 Kan.
___ (August 4, 2015).

Finally, Jones argues that the district court unconstitutionally used his two prior
juvenile adjudications to elevate his criminal history at sentencing without requiring the
State to prove the adjudications to a jury beyond a reasonable doubt, which Jones claims
violates Apprendi, 530 U.S. 466. As Jones acknowledges, the Kansas Supreme Court
previously has rejected this argument in State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732
(2002). This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Belone, 51
Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. ___ (September 14, 2015).
There is no indication that our Supreme Court is departing from its holding in Hitt.

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Affirmed.
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