Opinion
No. 107,193.
2013-08-2
STATE of Kansas, Appellee, v. Robert HENDERSON, Appellant.
Appeal from Wyandotte District Court; William P. Mahoney, Judge. Randall L. Hodgkinson, 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.
Appeal from Wyandotte District Court; William P. Mahoney, Judge.
Randall L. Hodgkinson, 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 GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Robert Henderson of aggravated robbery in a holdup at a convenience store gas pump. Henderson challenges the legality of instructing the jury on the alternative means of robbery, the jury instruction on aiding and abetting, the district court's failure to instruct on the lesser-included offense of robbery, the prosecutor's violation of the motion in limine, the reasonable doubt instruction, and cumulative error. We affirm.
About midnight on December 5, 2009, Arnafo Aquilera was filling up his car with gas at a convenience store. Aquilera was accompanied by his girlfriend, Diana Reyes, who stayed in the car. Neither Aquilera nor Reyes speak English very well. A jeep with three occupants stopped at the gas pump on the other side of Aquilera. Two men got out of the jeep and approached Aquilera—one from in front and the other from behind.
Aquilera could see that the man in front was armed with a black gun that was partially concealed in his jacket. In our reading of the trial transcript, it is somewhat unclear whether the man in front of Aquilera actually pointed the gun at Aquilera. It appears this is a translation problem. The State claims the man pointed the gun at Aquilera. Instead, it appears that Aquilera was testifying that the man was pointing at the gun in his waistband. Aquilera could not see the man behind him, but he felt what he thought was a gun being pushed into his back. Aquilera said the man behind him began searching for Aquilera's wallet. Because of the search and the man in the front yelling, Aquilera deduced that they wanted his wallet although he did not understand everything they said. Aquilera gave his wallet to the man behind him. Reyes saw Aquilera give his wallet to the man standing behind him. The men ran back to the jeep.
The man standing behind Aquilera got into the backseat behind the driver. The man in front of Aquilera got into the front passenger seat. Reyes testified the man in front of Aquilera wore a red jacket with a stripe or letters on it and had a long tattoo on his neck. Reyes testified that she did not see any of the men carrying a gun.
Detective Kent Leiker testified he contacted Henderson about a month after the robbery. Henderson admitted to being involved in the robbery. Henderson told him Amanda Bushue drove the jeep, he was in the front passenger seat, and Robert Castle was in the back. Henderson said Castle showed the gun, but Henderson took Aquilera's wallet. Det. Leiker testified Henderson said he knew the gun was loaded when they left Castle's house to commit the robbery. Henderson said Castle flashed the gun in his waist band and Aquilera handed over the wallet.
Detective Tom Dyche testified Henderson told him of the group's intent to steal a wallet. Henderson said he was driving, but once they got to the store he and Amanda switched positions. Henderson told Det. Dyche that Castle stood in front of Aquilera and he stood behind him. Castle exposed the handgun in his waistband, and then Aquilera handed his wallet to Castle.
Aquilera picked Henderson out of a six-person lineup as the man who robbed him. Reyes did the same. Aquilera identified Henderson in the courtroom as the man who stood in front of him during the robbery. He said Henderson was the man with the gun. Reyes also identified Henderson in the courtroom as the man who stood in front of Aquilera and the man wearing the red jacket that night.
Henderson took the stand in his own defense. He testified he was 21 years old but only had an eighth-grade education. Henderson admitted to being with Castle and Bushue on the evening in question, but said it was Castle who needed money that night. Henderson said Castle was the leader of the group. Henderson said the gun later found at Castle's grandmother's house was the gun Castle used during the robbery. Henderson testified he did not know that Castle had a gun until they got to the store. Henderson said he was in the driver's seat, Bushue was in the front passenger seat, and Castle was in the back. The gun lay next to Castle on the backseat. Castle put the gun in his waistband when he got out of the jeep.
The State charged Henderson with one count of aggravated robbery, a severity level 3, person felony, in violation of K.S.A. 21–3427. A jury convicted Henderson as charged. The trial court sentenced him to a presumptive tern of 206 months' incarceration. Henderson appeals.
Henderson first seeks reversal of his conviction for aggravated robbery, arguing the trial court instructed the jury on alternative means of committing the crime but the State failed to provide sufficient evidence to support each means. Specifically, Henderson contends the jury was instructed it could find that the defendant took property from the person of another and the “taking was by force or the threat of bodily harm,” and these were alternative means of committing a crime under K.S.A. 21–3426 and K.S.A. 21–3427. He also contends the law on alternative means is implicated in the jury instruction stating that a person intentionally “aids or abets” another in the commission of a crime is criminally responsible. The State responds that these are not alternative means.
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ “ State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 100 Wash.2d 403, 410, 756 P.2d 105[1988] ).
In State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), our Supreme Court held that courts should apply a super-sufficiency of the evidence test in alternative means cases. Under this test, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. 290 Kan. at 202–03. Therefore, when the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support each means, reversal is required. 290 Kan. at 203.
Recently, in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), our Supreme Court held that courts must first determine whether the jury was presented with alternative means on a charge before it applies the super-sufficiency requirement. To make that determination, we must first consider whether an “or” separates alternative means or separates “options within a means.” 295 Kan. at 194. The Brown court explained:
“In examining legislative intent, a court must determine for each statute what the legislature's use of a disjunctive ‘or’ is intended to accomplish Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction.” 295 Kan. at 194.
The Brown court further explained that the legislature often signals its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute. 295 Kan. at 196. The legislature may also list additional alternatives or options within a single means of committing the crime. These “options within a means” do not constitute alternative means themselves if they do not state additional and distinct ways of committing the crime. Thus, if the “options within a means” do not require proof of at least one additional and distinct material element, they do not constitute alternative means. Brown, 295 Kan. at 200.
First, Henderson challenges the aggravated robbery instruction by arguing the State presented insufficient evidence to demonstrate that he had taken property from Aquilera by force. However, if “force” and “threat of bodily harm” are not alternative means under K.S.A. 21–3426, the lack of evidence that Henderson took property from Aquilera by force will not require reversal of the conviction See Wright, 290 Kan. at 203.
The court in State v. Moore, No. 106,209, 2013 WL 1010284, at *5 (Kan.App.2013) (unpublished opinion), recently rejected a defendant's argument that “force or threat of bodily harm” presented alternative means of committing the crime of aggravated robbery:
“Again, the focus of the crime of robbery is the defendant's act of taking someone else's property. This is true regardless of whether the defendant took the property by force or by threat of bodily harm. Therefore, force and threat of bodily harm are merely descriptions of the types of factual circumstances that may form the State's proof. Thus, we conclude that the terms ‘force’ or ‘threat of bodily harm’ are merely ‘options within a means' and are not alternative means of committing the crime of robbery. See Haberlein, 296 Kan. at 208 (‘Force, threat, and deception are not alternative means of committing a kidnapping or aggravated kidnapping....’).”
That is also the case here.
Henderson next argues the instruction on aiding and abetting presented a situation of alternative means and there is no evidence to support a finding that he “abetted” Castle in this crime. We reject Henderson's argument based again on recent holdings of this court. Aiding and abetting is not a separate crime in Kansas. Nor are aiding and abetting two different ways of committing a crime. Rather, it is a concept that extends criminal liability to a person other than the principal actor or actors. The court in State v. Johnson, 46 Kan.App.2d 870, 885–86, 265 P.3d 585 (2011), stated:
“Although there are minor differences in the meaning of the terms ‘aids,’ ‘abets,’ ‘advises,’ ‘hires,’ ‘counsels,’ and ‘procures,’ we find that these terms do not entail materially different or distinct ways of committing a particular crime. The thrust of K.S.A. 21–3205 is that a person who knowingly induces or assists another person to commit a crime is criminally responsible for the crime regardless of the extent the person participates in the actual commission of the crime. We conclude that K.S.A. 21–3205(1) does not set forth alternative means of committing a crime.”
Neither of Henderson's alternative means arguments has merit.
Next, Henderson argues it was clearly erroneous for the trial court not to instruct the jury on aiding and abetting of an unintended crime. He argues that based on his testimony he did not know Castle was armed, the district court should have charged the jury with the determination of whether commission of aggravated robbery was reasonably foreseeable. He argues that based on his testimony, the jury could have concluded that he did not specifically intend to aid the crime of aggravated robbery and he could have been acquitted of the charges.
At trial, Henderson did not request the instruction now requested on appeal. In State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012), our Supreme Court clarified the standard of review and clearly erroneous standard when an instruction issue is being raised for the first time on appeal. The court found that in order to determine whether it was clearly erroneous to give or fail to give an instruction under K.S.A. 22–3414(3), the reviewing court must first determine whether the instructor was erroneous, which is a legal question subject to unlimited review. 295 Kan. at 515–16. Then, if the reviewing court determines the district court erred in giving or failing:o give a particular instruction, the court engages in a reversibility inquiry. To determine whether an instruction requires reversal, the court determines if it is clearly erroneous, “ i.e., whether the reviewing court is firmly convinced that the jury would lave reached a different verdict had the instruction error not occurred.” 295 Kan. at 516. This determination requires a review of the entire record and a de novo determination. The burden to show clear error under K.S.A. 22–3414(3) is on the defendant. 295 Kan. at 516.
The jury was instructed pursuant to PIK Crim.3d 54.05, “Responsibility for crimes of another.” Jury Instruction No. 7 provided:
“A person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Henderson argues the trial court should have given a jury instruction on aiding and abetting an unintended crime similar to PIK Crim.3d 54.06, “Responsibility for crimes of another—crime not intended”: “A person who intentionally [aids or abets] another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.”
Henderson argues that although he may have intended to aid and abet a robbery, he did not intend to aid and abet an aggravated robbery because it was not reasonably foreseeable that Castle would use a gun in the commission of the crime. Thus, Henderson claims the district court should have instructed the jury using PIK Crim.3d 54.06 on aiding and abetting a crime not intended.
Henderson essentially contends that the foreseeability of the crime committed is a question of fact for the jury to decide. In State v. Davis, 4 Kan.App.2d 210, 213, 604 P.2d 68 (1979), we stated:
“A review of the facts in each case is necessary to determine whether violence is reasonably foreseeable as a probable consequence of committing the crime intended. State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972). Defendant has a heavy burden, for the necessary intent and foreseeability may be inferred from circumstantial evidence [citation omitted] and is a fact question for jury determination. State v. Edwards, 209 Kan. 681, 686.498 P.2d 48 (1972).”
However, the Davis court added: “If a crime is inherently dangerous to human life, it would be foreseeable that an aggravated felony might occur.” 4 Kan.App.2d at 215; see also State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988) (in context of felony murder, foreseeability is established as matter of law if underlying felony is inherently dangerous to human life). Robbery is a crime inherently dangerous to human life. State v. Giddings, 226 Kan. 110, 113, 595 P.2d 1115 (1979). Therefore, it was foreseeable that an aggravated robbery might occur.
Henderson's argument is not supported by the State's theory of the case or the evidence presented at the trial. The State argued that Henderson was directly involved in the commission of the aggravated robbery as the principal or that he intended to aid and abet in the commission of the aggravated robbery. More importantly, the evidence showed Henderson actively participated in taking Aquilera's wallet after he knew Castle was armed with a gun and when Castle showed the gun to Aquilera. The “reasonably foreseeable” language of PIK Crim.3d 54.06 was unnecessary on these facts. Thus, the district court did not err in instructing the jury on aiding and abetting pursuant to PIK Crim.3d 54.05. See State v. Palacio, No. 98,129, 2008 WL 4067936, at *2 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 768 (2009).
Similarly, Henderson argues the trial court erred in not giving a lesser-included offense jury instruction for robbery. We apply the same clearly erroneous standard as recited above for instructions not requested at trial. See Williams, 295 Kan. at 510.
Robbery is a lesser-included offense of aggravated robbery. See K.S.A. 21–3107(2)(a). State v. Johnson & Underwood, 230 Kan. 309, 634 P.2d 1095 (1981), is instructive. Johnson was convicted of aggravated robbery. On appeal, he argued that the trial court committed reversible error because it refused to instruct on robbery. The Supreme Court rejected that argument, stating:
“In the present case the evidence is uncontroverted: the robbery was accomplished with a gun. Moreover, pursuant to K.S.A. 21–3205, the aiding and abetting statute, it is not necessary for both defendants to possess a gun to justify both being convicted of aggravated robbery. Proper instructions on aggravated robbery and aiding and abetting were given. Defendants were guilty of aggravated robbery or nothing.” 230 Kan. at 311.
See State v. Sutherland, 248 Kan. 96, 101–03, 804 P.2d 970 (1991); State v. Mitchell, 234 Kan. 185, 189–90, 672 P.2d 1 (1983).
Even examining the evidence in the light most favorable to Henderson, there is insufficient evidence to support simple robbery in this case. Henderson testified he knew Castle had a gun before the crime was committed. Even if we accept his testimony that he became aware of the gun in the convenience store parking lot, he still had an opportunity to avoid the aggravated robbery. Yet, even if his testimony is accepted, he participated in the crime and hemmed in Aquilera from behind to prevent his escape even, if by just standing there. Based on this evidence, Henderson knew the crime was going to be committed with a gun and that the gun was visible and seen by Aquilera. There is no evidence to reasonably justify a conviction of robbery in this case. There was no error in the trial court's failure to provide an instruction on robbery.
Next, Henderson argues he is entitled to a new trial based on testimony from police detectives concerning their investigations of other robberies.
We articulated our general standard of review regarding purported violations of motions in limine in State v. Hall, 45 Kan.App.2d 290, 307, 247 P.3d 1050 (2011), petition for review granted September 23, 2011:
“In reviewing an alleged violation of an order in limine, this court must decide the following: (1) Was the order in limine violated? (2) If so, did the violation substantially prejudice the defendant? The defendant bears the burden of establishing substantial prejudice resulting from the admission of evidence in violation of an order in limine. [Citations omitted.]”
Because the trial court is in the best position to decide whether its order in limine was violated, the denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (7008).
On the morning of trial, defense counsel and the prosecution outlined the agreement between them that the prosecutor would not solicit any evidence concerning other robberies allegedly committed by Henderson in Johnson County. However, during the State's examination of Det. Dyche, he testified: “I was informed by Detective Mendez that he was transporting voluntarily Mr. Henderson back to their department to interview him regarding a series of robberies that both me ... and Detective Mendez were investigating.” Out of the hearing of the jury, defense counsel immediately asked for a mistrial, but the request was denied. However, the trial court gave the jury the following cautionary instruction:
“Ladies and Gentleman of the jury, I'm going to ask you to disregard that last response. At the close of the evidence you're going to be instructed to follow the evidence that's been presented. You're aware of what the charges [are] in this case and we just ask you to disregard that last response.”
Henderson also complains about additional testimony by Det. Dyche that occurred shortly thereafter. The prosecutor questioned him about the gun they found at Castle's grandmother's house. Det. Dyche testified:
“I informed Ms. Castle that we believed that it was used within a robbery or two robberies and we requested that she would voluntarily allow us to take the handgun with us and he indicated to her that once the case, there is a disposition in the case regarding all of the defendants that it could be released back to her.”
Defense counsel did not object to this testimony.
At the next recess, defense counsel renewed her motion for mistrial based on Det. Dyche's testimony about the other robberies. The trial court denied defense counsel's motion as follows:
“Well at this point, this witness clearly is the only chain of custody for the weapon, the initial statement the Court addressed already. The contact to the second statement is about Mr. Castle and his relationship with his family member who owned the handgun. There was nothing in Detective Dyche's testimony about how this weapon was used or held by the defendant in this case. The Court is concerned that we've had two unnecessary extraneous comments about multiple crimes in a short amount of time. However, given the ... the type of evidence and the amount of evidence in this case, the Court believes that a limiting instruction can encourage the jury to decide this case on the evidence against Mr. Henderson with regards to this incident at 18th and Grandview, not independent of this other information.
“In addition, Ms. Brock already previously asked about the storage lockers and other information, so there's already some other information that was brought out by the defendant in this case and not specifically addressing robberies. So, at this point, I'm going to deny your renewed motion....”
A district court normally cures the prejudice from an improper admission of evidence by admonishing the jury to disregard testimony elicited in violation of an order in limine. In State v. Barncord, 240 Kan. 35, 44, 726 P.2d 1322 (1986), on cross-examination, a police officer stated that the defendant had served time in jail, despite a court order that no reference would be made to the defendant's criminal record. In State v. Rivera, 42 Kan.App.2d 914, 922, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010), on cross-examination, a police officer stated, in direct contravention of a court order, that he had seen the defendant's mug shot. In both Barncord and Rivera, the district court immediately admonished the jury to disregard the statement. Barncord, 240 Kan. at 45;Rivera, 42 Kan.App.2d at 922.
The Barncord court held that the defendant had not been substantially prejudiced and, thus, was not entitled to a new trial because the improper testimony had little, if any, likelihood of affecting the trial's outcome. 240 Kan. at 44–45 (noting existence of other evidence against defendant and curative effect of jury admonition). The Rivera court held: (1) The defendant's right to a fair trial had not been violated by the violation of the limine order because he did not suffer substantial prejudice given the other evidence against him and the immediate jury admonition, and (2) the district court had not abused its discretion by denying the defendant's motion for a new trial because a reasonable person would believe the jury admonition rendered the improper admission of evidence harmless. 42 Kan.App. at 921–22.
In State v. Pruitt, 42 Kan.App.2d 166, 211 P.3d 166 (2009), the district court ordered the State to tell its witnesses not to mention any previous encounters they may have had with the defendant involving the investigation of other criminal activities. At trial, the prosecutor asked the witness: “And, Officer, you know the suspect in this case, or the defendant in this case? Are you familiar with him, yes?” The officer replied, “His name had came up on another incident”; defense counsel objected, but the officer finished his response, “—just prior to this.” 42 Kan.App.2d at 169–70. The prosecutor had already started to ask another question before the district court stepped in and dismissed the jury. The district court stated the prosecutor had come very close to violating its order in limine and it had to assume the prosecutor knew the answer—the officer knew the defendant from other proceedings. However, the district court neither granted defense counsel's motion for a mistrial nor admonished the jury to disregard the officer's testimony.
The Pruitt court held that the defendant was substantially prejudiced by the officer's improper testimony because not only did it reveal to the jury that the defendant had been a suspect in another crime, but it allowed the jury to infer that the defendant was no stranger to law enforcement. 42 Kan.App.2d at 170. The court also gave additional reasons for the finding: (1) the prosecutor's highly leading and suggestive questions showed a willingness to violate the order in limine; (2) the evidence against the defendant was not overwhelming because the case was built on witness credibility; (3) the district court did not admonish the jury regarding the testimony violative of the order in limine; and (4) the prosecutor followed the order in limine violation with an intentional Doyle violation (post- Miranda silence rule), see Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Pruitt, 42 Kan.App.2d at 171–73 (finding substantial prejudice to defendant in credibility contest between defendant and eyewitness officer).
Here, we must determine whether the trial court abused its discretion by denying Henderson's motion for a new trial based on a violation of an order in limine. Because it is obvious that a violation of the order in limine occurred when Det. Dyche mentioned other robberies, all we need decide is whether the testimony substantially prejudiced Henderson. We do not have facts similar to Pruitt. We find Henderson was not substantially prejudiced based on the following factors: (1) Evidence of Henderson's involvement in burglaries in Johnson County had already been elicited by defense counsel; (2) the trial court immediately admonished the jury to disregard Det. Dyche's improper testimony; (3) Det. Dyche's testimony regarding the gun found at the Castle residence warrented no implication regarding Henderson's involvement in the robberies; (4) there was overwhelming evidence and the confession that Henderson participated, to whatever degree, in the robbery; and (5) the trial court offered to give a limiting instruction in the jury instructions.
Henderson argues the trial court believed a limiting instruction would cure any problem, but the court did not give any limiting instruction to the jury. During the instructions conference, the court attempted to include an instruction that the jury was not to consider any extraneous information in determining whether Henderson was guilty or not guilty of the crime charged. Defense counsel vehemently objected to the instruction based on a strategy that the instruction would bring unnecessary attention to the other possible crimes evidence heard by the jury. The instruction was ultimately not given to the jury.
We agree with the State that it is disingenuous for Henderson to complain about the failure to give an instruction and then use it as support for an argument of abuse of discretion when defense counsel so passionately requested the instruction not be given. We will not allow a party to invite error and then complain about it on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011) (A party who leads the court into error cannot complain about that issue on appeal.). The trial court did not abuse its discretion in rejecting defense counsel's request for a mistrial.
Next, Henderson challenges the reasonable doubt instruction given to the jury. He argues the use of the phrase “any of the claims” instead of “each of the claims” required to be proven by the State diluted the burden of proof and violated his due process rights under the Fifth Amendment to the United States Constitution. Henderson raises this argument for the first time on appeal.
The jury instruction at issue, which was nearly identical to the pre–2004 version of PIK Crim.3d 52.02, stated:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required tc be proved by the State, you should find the defendant guilty.”
This instruction is identical to the post–2004 PIK Crim.3d 52.02 jury instruction except for one word:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
At trial, Henderson did not object to the use of this instruction. As such, we again apply the clearly erroneous standard of review outlined above in K.S.A.2012 Supp. 22–3414(3) and Williams, 295 Kan. 506.
To that end, Henderson does not assert the district court erred by using the word “any” in both portions of the instruction. Rather, Henderson contends “each” should have been substituted for the second “any,” which would make the last sentence read as follows: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) It is Henderson's contention that the instruction is not legally appropriate because the second use of the word “any” caused the State's burden of proof to be diluted and, therefore, his constitutional rights—the requirement of proof beyond a reasonable doubt under the Fifth Amendment to the United States Constitution and the right to a jury trial under the Sixth Amendment—to be violated. In support of his argument, Henderson relies heavily on Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), petition for rev. granted 296 Kan. –––– (March 4, 2013).
In 2004, the pattern instruction committee changed the PIK instruction used in this case from the any/any language to the any/each language Henderson argues is constitutionally necessary. The amendment was in response to the Court of Appeals' decision in State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). See PIK Crim. 4th 51.010; see also Comment, PIK Crim.3d 52.02 (2004 Supp.) (“The Committee has also changed the word ‘any’ to ‘each’ in the last sentence of the instruction in order to be consistent with the instructions throughout PIK Crim.3d which state, ‘To establish this charge, each of the following claims must be proved....’ ”). In Beck, however, the Court of Appeals rejected an argument that the any/any language created error; it simply found the any/each wording was preferable. 32 Kan.App.2d at 787.
Critical to resolution of the issue presented by Henderson, the holding in Beck was recently approved by our Supreme Court in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). Citing Beck, the Kansas Supreme Court in Herbel rejected an identical argument to the one presented by Henderson in this appeal and concluded the pre–2004 any/any version of the PIK instruction, while “not the preferred instruction, it was legally appropriate.” Herbel, 296 Kan. at 1124. We are duty bound:o follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Because Henderson presents no other argument regarding the legal or factual appropriateness of this instruction, we conclude the reasonable doubt instruction in this case was not clearly erroneous.
Henderson's final claim on appeal is that even if each of the errors at his trial do not individually demand a new trial, the cumulative effect of those errors is sufficient to require retrial of the case.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). Also, “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
For errors to have a cumulative effect that transcends the effect of the individual errors, there must have been more than one individual error. See State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009); State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007). Above, we found the only error was Det. Dyche's violation of the motion in limine. The cumulative error rule is not involved. Henderson is entitled to a fair trial, not a perfect trial. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“As we have stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”); State v. Lumley, 266 Kan. 939, 962, 976 P.2d 486 (1999) (A “ ‘defendant is entitled to a fair trial but not a perfect one.’ ”) (quoting State v. Bradford, 219 Kan. 336, 338, 548 P.2d 812 [1976] ).
Affirmed.