State v. Fleming, No. 112,549

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Luckert, J.
Citation423 P.3d 506
Parties State of KANSAS, Appellee, v. Willie FLEMING, Appellant.
Decision Date10 August 2018
Docket NumberNo. 112,549

423 P.3d 506

State of KANSAS, Appellee,
v.
Willie FLEMING, Appellant.

No. 112,549

Supreme Court of Kansas.

Opinion filed August 10, 2018.


Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Luckert, J.:

423 P.3d 508

In this appeal, Willie Fleming questions whether the invited-error doctrine automatically applies when a party requests a jury instruction at trial but claims error on appeal. We consider the rationale underlying the invited-error doctrine, how the doctrine has been applied in Kansas cases involving asserted jury instruction error, whether K.S.A. 22-3414(3) precludes the doctrine's application, and whether the doctrine should be applied here. We hold the invited-error doctrine does not automatically apply every time a party requests an instruction at trial but then, on appeal, claims the district court erred by giving it. Instead, appellate courts must engage in a searching analysis of the facts of the case to determine whether the complaining party truly invited the error. Under the circumstances of this case, we apply the doctrine and do not review the merits of Fleming's claim of jury instruction error.

FACTS AND PROCEDURAL HISTORY

The State charged Fleming with theft, aggravated robbery, and aggravated burglary after an investigation revealed evidence that he and others broke into a residence at night and took property. The noise they made while entering the residence startled Carrington Dean and Quintez Secka, who had been asleep in separate upstairs bedrooms. Dean was a guest who was sleeping over that night, and Secka was a resident. Other residents were not home at the time.

The State presented evidence at trial establishing that Fleming and another man entered the room where Dean had been sleeping. According to this evidence, Fleming hit Dean in the head with a gun and demanded, "Where's the money, where's the weed, where's the safe[?]" When Dean told them he did not know what they were talking about, the men searched the upstairs rooms. Meanwhile, Secka hid from sight. When the men left the house, Dean realized his cell phone and wallet, which had been in the room with him, had been taken. Eventually, the residents of the home realized the burglars had taken property from other rooms.

In charging Fleming with aggravated robbery, the State specified that Fleming had taken a cell phone and a wallet from the person or presence of Dean. In charging theft, the State alleged he took a television, a PlayStation, a laptop computer, and watches. A jury acquitted Fleming of theft but convicted him of aggravated robbery and aggravated burglary.

Fleming appealed to the Court of Appeals, raising three issues: (1) Did the district court err in instructing the jury on aggravated robbery by saying that the State had to prove Fleming "took property from the person or presence of the" victim without specifying that the State had alleged the stolen property was a cell phone and a wallet? (2) Did the district court err in failing to give a jury instruction on sympathy and prejudice? and (3) Did the district court err in increasing his sentence based on his criminal history in violation of his Sixth and Fourteenth Amendment rights?

The Court of Appeals panel held Fleming had not preserved the first issue because he invited the error and he failed to establish the merits of his arguments on the second and third issues. One member of the panel, Judge Steve Leben, concurred on the first issue. On that issue, the panel disagreed about whether the invited-error doctrine applied. But the panel unanimously agreed, although for different reasons, that Fleming's convictions and sentences should be affirmed. State v. Fleming , No. 112,549, 2016 WL 3960159 (Kan. App. 2016) (unpublished opinion).

Fleming sought our review of the Court of Appeals decision. We granted review of the first issue only—the alleged error in instructing on aggravated robbery. This means we will not discuss the Court of Appeals' analysis of the other two issues. See Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 53). Some additional details help explain Fleming's arguments related to the first issue.

423 P.3d 509

On appeal, Fleming challenged the aggravated robbery jury instruction as being broader than the charge set out in the complaint against him. The complaint alleged:

"COUNT 1- That on or about the 12th day of December, 2012, in the City of Overland Park, County of Johnson and State of Kansas, WILLIE DEMARIO FLEMING, did then and there unlawfully, feloniously and knowingly take property, to-wit: cell phone, wallet from the person or presence of another, to-wit: Carrington Dean , by force or by threat of bodily harm to the person of Carrington Dean, while armed with a dangerous weapon, to-wit: handgun, and did inflict bodily harm upon Carrington in the course of such robbery, a severity level 3 person felony, in violation of K.S.A. 21-5420, K.S.A. 21-6804 and K.S.A. 21-6807 (aggravated robbery)." (Emphasis added to highlight the language Fleming relies upon.)

Fleming's counsel proposed an instruction based on the pattern instruction on aggravated robbery. Fleming's proposed instruction changed the charged language of "property: to wit: cell phone, wallet from the person or presence of another" to "property from the presence of Carrington Dean." In full, Fleming's proposed instruction read:

"The defendant is charged in Count I with aggravated robbery. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. The defendant knowingly took property from the presence of Carrington Dean .

"2. The taking was by threat of bodily harm to Carrington Dean.

"3. The defendant inflicted bodily harm upon Carrington Dean.

"4. This act occurred on or about the 12th day of December, 2012, in Johnson County Kansas." (Emphasis added to language at issue).

The State proposed similar language, stating it had to prove that Fleming knowingly "took property from the person or presence of Carrington Dean."

Thus, both Fleming's and the State's proposed instructions deviated from the language in the complaint by referring to the taking of "property" without specifying that the State had alleged Fleming took a cell phone and wallet. Fleming's proposed instruction also deviated from the language in the complaint by proposing use of the phrase "from the presence" of Dean rather than the complaint's language of "from the person or presence." The State's proposed instruction stayed true to the complaint on that point, stating "person or presence."

The district court, in preparing a proposed jury instruction, used the language both Fleming and the State had proposed regarding use of "property"—it did not describe the property. The court then used the complaint's language (and the language in the State's proposed instruction) of "person or presence." In full, the sentence in the proposed instruction read: "1. The defendant knowingly took property from the person or presence of Carrington Dean." Fleming concedes his counsel did not object to the proposed instruction or point out its deviation from the complaint. The district court then instructed the jury using that language.

Although Fleming did not complain on appeal about the phrase "person or presence," the Court of Appeals addressed that phrase. It held "taking from the presence"—the language Fleming had proposed—is a broader concept than "taking from a person." Thus, the panel concluded "it is clear the district court's instruction did not expand Fleming's proposed instruction." 2016 WL 3960159, at *3. Fleming did not argue against this conclusion in his petition for review and has thus waived any objection to that wording. See Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54) ("The court will not consider issues not presented or fairly included in the petition" for review); see also State v. Perry , 303 Kan. 1053, 1054, 370 P.3d 754 (2016) (applying rule).

The panel next turned to the specific language Fleming challenged: "took property." Fleming argued to the panel, and to us, that the failure to specify the property—the cell phone and the wallet—allowed the jury to consider all the property taken from other

423 P.3d 510

parts of the house where he was not present. Thus, he argued, the instruction impermissibly broadened the charge brought against Fleming. Factually, Fleming's argument loses some, but not all, of its steam because the jury acquitted Fleming on the charge of theft relating to a television, a PlayStation, a laptop computer, and watches. But the State also presented evidence of the theft of keys, a purse, clothing, jewelry, and other items. So, factually, there remains property the jury could have potentially considered.

In response, the State raised several legal questions about the effect of variances, especially relating to factual allegations—an issue it argued this court has never settled. Citing caselaw about variances from other jurisdictions, the State argued no error...

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45 practice notes
  • State v. Smith, No. 113,828
    • United States
    • United States State Supreme Court of Kansas
    • May 31, 2019
    ...objection to the panel's conclusions that he is not entitled to relief under these provisions. State v. Fleming , 308 Kan. 689, 692-93, 423 P.3d 506 (2018). As a result, the only jurisdiction question presented is whether the nunc pro tunc provision of K.S.A. 22-3504(2) grants us jurisdicti......
  • State v. Lowery, No. 115,377
    • United States
    • United States State Supreme Court of Kansas
    • October 5, 2018
    ...Hargrove paradigm, Lowery is faced with a fatally silent record with respect to inadvertence. See State v. Fleming , 308 Kan. 689, 704-05, 423 P.3d 506 (2018) (holding that in the face of a silent record on trial counsel's inadvertence or trial strategy, the mere fact of raising a constitut......
  • State v. Brazzle, No. 116,649
    • United States
    • United States State Supreme Court of Kansas
    • July 10, 2020
    ...for review constitutes a waiver of those issues, but considering appeal on question reserved). Cf. State v. Fleming , 308 Kan. 689, 694, 423 P.3d 506 (2018) ("Before the Court of Appeals and us, Fleming presents four reasons the invited-error doctrine should not apply."). See also......
  • State v. Cottrell, No. 114,635
    • United States
    • United States State Supreme Court of Kansas
    • July 19, 2019
    ...¶ 1, 283 P.3d 202 (2012). The first step is reviewability, a concept that includes invited error. State v. Fleming , 308 Kan. 689, 695, 423 P.3d 506 (2018). "Whether the invited error doctrine applies is a question of law over which this court has unlimited review." Sasser , 305 K......
  • Request a trial to view additional results
44 cases
  • State v. Smith, No. 113,828
    • United States
    • United States State Supreme Court of Kansas
    • May 31, 2019
    ...objection to the panel's conclusions that he is not entitled to relief under these provisions. State v. Fleming , 308 Kan. 689, 692-93, 423 P.3d 506 (2018). As a result, the only jurisdiction question presented is whether the nunc pro tunc provision of K.S.A. 22-3504(2) grants us jurisdicti......
  • State v. Lowery, No. 115,377
    • United States
    • United States State Supreme Court of Kansas
    • October 5, 2018
    ...Hargrove paradigm, Lowery is faced with a fatally silent record with respect to inadvertence. See State v. Fleming , 308 Kan. 689, 704-05, 423 P.3d 506 (2018) (holding that in the face of a silent record on trial counsel's inadvertence or trial strategy, the mere fact of raising a constitut......
  • State v. Brazzle, No. 116,649
    • United States
    • United States State Supreme Court of Kansas
    • July 10, 2020
    ...for review constitutes a waiver of those issues, but considering appeal on question reserved). Cf. State v. Fleming , 308 Kan. 689, 694, 423 P.3d 506 (2018) ("Before the Court of Appeals and us, Fleming presents four reasons the invited-error doctrine should not apply."). See also State v. ......
  • State v. Cottrell, No. 114,635
    • United States
    • United States State Supreme Court of Kansas
    • July 19, 2019
    ...¶ 1, 283 P.3d 202 (2012). The first step is reviewability, a concept that includes invited error. State v. Fleming , 308 Kan. 689, 695, 423 P.3d 506 (2018). "Whether the invited error doctrine applies is a question of law over which this court has unlimited review." Sasser , 305 Kan. at 123......
  • Request a trial to view additional results

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