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NOT DESIGNATED FOR PUBLICATION

No. 112,841

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

PABLO ALBERTO GONZALEZ,

Appellant.

MEMORANDUM OPINION

Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed June 10,

2016. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J, STANDRIDGE and ATCHESON, JJ.

Per Curiam: A jury convicted Pablo Alberto Gonzalez of unintentional but

reckless second-degree murder after he fatally shot his friend, Levi Bishop, in the neck.

On appeal, Gonzalez challenges his conviction by alleging insufficient evidence as well

as constitutional, instructional and trial errors. Finding no error, we affirm Gonzalez'

conviction.

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FACTS

At approximately 4:45 a.m. on January 1, 2014, St. Marys Police Officer Mark

Lamberson was in his office at the police station when he saw a car pull into the parking

lot and heard a car horn honking continuously. Lamberson got up to investigate and saw a

man, later identified as Gonzalez, approach the visitor entrance to the police station and

begin pounding on the door. Lamberson made contact with Gonzalez, who was

intoxicated, "fairly frantic," and stated that he needed help because he had "just shot his

boy in the face." After determining that Gonzalez did not have a gun on his person,

Lamberson approached Gonzalez' car and saw a handgun on the ground near the driver's

side door. Bishop was dead in the passenger seat of the car, while Jeff Swisher was

standing outside the car and Zachary Cashman was crying in the back seat. Lamberson

took possession of the gun, which had one round in the chamber, and placed Gonzalez

into custody.

Law enforcement subsequently interviewed Swisher, Cashman, and Gonzalez.

Swisher reported that he and Cashman had been passed out in the back seat of the car

when they woke up to the sound of a gunshot. Cashman told law enforcement the men

had been at a party until about 3 a.m., and he had been passed out or asleep in the back

seat of Gonzalez' car when he heard a loud bang. When Cashman woke up, he saw

Bishop slumped over in the front passenger seat and could not get Bishop to respond.

Cashman was not aware of any fight or altercation between Gonzalez and Bishop.

For his part, Gonzalez claimed when interviewed that the shooting was accidental,

blaming the trigger safety on his gun and/or a bump in the road. Gonzalez initially

claimed ownership of the handgun but then indicated that he had borrowed it.

Approximately 3 1/2 hours after the shooting, Gonzalez' blood-alcohol level was .25. The

State charged Gonzalez with a single count of intentional second-degree murder, an

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alternative count of unintentional but reckless second-degree murder, and one count of

aggravated assault.

The State presented the following evidence at trial. On the evening of

December 31, 2013, Swisher (Bishop's step-brother) and Cashman drank alcohol and

played games at a friend's house. Gonzalez also was there with his girlfriend, Bailey

Bishop (Bishop's sister). Just after midnight, this group went to a larger party, where they

continued drinking and were later joined by Bishop. At some point, Swisher and

Cashman decided they wanted to go back to the first party, and Gonzalez agreed to drive

them. Bishop, who was outside, also decided to go. Swisher and Cashman ultimately

passed out in the back seat of the car. Cashman remembered making at least one stop. He

testified that Bishop wanted to get some food and that someone wanted to get cigarettes.

Around 4:30 a.m., Gonzalez drove to Andrew Schindler's house to get some

cigarettes. Schindler testified he saw Gonzalez' car pull up and saw Gonzalez and Bishop

get out of the car. As Gonzalez stepped out of the car, Schindler saw Gonzalez' handgun

fall out onto the ground. Gonzalez picked up the gun, put it in his pocket, and then

walked around the car where Schindler and Bishop were talking. According to Schindler,

Gonzalez "was pointing [the gun] around and being stupid." Schindler testified that

Gonzalez pointed the gun at Schindler's head once or twice and that he told Gonzalez to

stop. Schindler then went inside to get cigarettes so that Gonzalez would leave.

As Schindler was heading into his house to retrieve the cigarettes, he observed

John Syrokos walking toward Gonzalez and Bishop from down the street. Syrokos

testified that he left a New Year's Eve party around 4:30 a.m. and started walking home.

While on his way home, Syrokos saw Gonzalez, with whom he was acquainted. As

Syrokos got closer to Schindler's house, Syrokos saw Gonzalez pull his handgun out and

chamber a round, after which Gonzalez called out to him asking that he identify himself.

Feeling scared, Syrokos called out his name and, as he got closer, Gonzalez put the gun

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under his coat. The two talked for about 10 or 15 minutes before Syrokos left. When

Syrokos got home, he called the sheriff's office to report that Gonzalez had pulled out his

gun and chambered a round.

Shortly thereafter, Swisher and Cashman woke up to the sound of gunshots and

arrival at the police station. The State presented evidence that Bishop had been killed by a

contact gunshot wound to the neck. Based on the markings around the wound, it appeared

that the gun was against Bishop's skin at the time it was discharged. Law enforcement

discovered an ammunition clip with 12 rounds of .40 caliber ammunition in the driver's

side door jamb. They also located five spent shell casings in the car, including one on the

driver's side front floor and one in the driver's side door pocket. A bullet hole was located

in the instrument panel directly in front of the driver's steering wheel.

Gonzalez' gun, a .40 caliber S&W semiautomatic pistol, was sent to the Kansas

Bureau of Investigation forensic laboratory for testing. The gun functioned properly and

the trigger pull measured approximately 6.5 pounds, which was within the standard

operational specifications. All four of the gun's safety features functioned properly. Any

time the chamber was loaded, the firearm would be cocked and a loaded chamber

indicator would show that a cartridge was in the chamber.

Gonzalez testified at trial. Gonzalez told the jury that he had known Bishop for 10

years and that he had been dating Bailey for almost 4 years. Gonzalez said that he and

Bishop had not been arguing and that he had no reason to harm Bishop. Gonzalez

testified that on the night of Bishop's death, he purchased a 30-pack of beer and a bottle

of champagne and began drinking around 8:30 or 9 p.m. Gonzalez admitted that he drank

a lot that night and did not dispute that his blood alcohol content was .25. Gonzalez said

that after getting "pretty drunk" at the second party, he and the other three men went

outside of town to go shooting, rode around, and then went to get cigarettes. Gonzalez

remembered he put the gun to his own head while they were riding around, and Bishop

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told him not to do that. In response, Gonzalez told Bishop that the gun was not loaded,

pointed the gun in Bishop's direction, and pulled the trigger. According to Gonzalez, he

was shocked that the gun went off and pulled the trigger again. Gonzalez said that when

he realized Bishop was hurt, he tried dialing 911 but was too drunk to complete the call,

so he drove to the police station. Gonzalez admitted he was responsible for Bishop's

death but claimed he did not know the gun was loaded and did not intend to shoot

Bishop. Gonzalez also admitted the gun belonged to him, he had owned guns, and he was

familiar with guns. Finally, Gonzalez admitted that, contrary to his initial statement, the

shooting was not caused by a bump in the road or a faulty trigger.

The jury ultimately found Gonzalez guilty of unintentional but reckless second-

degree murder and not guilty of aggravated assault. The district court imposed a

mitigated prison sentence of 123 months' imprisonment and postrelease supervision for a

term of 36 months.

ANALYSIS

On appeal, Gonzalez argues: (1) The statute defining unintentional second-degree

murder is unconstitutionally vague, (2) the evidence was insufficient to support the jury's

verdict, (3) the district court abused its discretion in responding to a question submitted

by the jury, (4) his constitutional rights were violated because the record does not reflect

that he was present for any discussion regarding the jury's question, (5) the district court

erred in failing to issue a limiting instruction regarding certain evidence admitted at trial,

and (6) the cumulative effect of the alleged errors deprived him of a fair trial. We address

each of these allegations in turn.

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1. Unconstitutionally vague

In the first challenge to his conviction on appeal, Gonzalez argues that the statute

defining unintentional second-degree murder is unconstitutionally vague. Gonzalez

concedes he did not raise this issue before the district court. Constitutional grounds for

reversal asserted for the first time on appeal are generally not properly before the

appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).

There are, however, several exceptions to this general rule: (1) when the newly asserted

theory involves only a question of law arising on proved or admitted facts and is finally

determinative of the case and (2) when consideration of the theory is necessary to serve

the ends of justice or to prevent denial of fundamental rights. See State v. Phillips, 299

Kan. 479, 493, 325 P.3d 1095 (2014). Gonzalez correctly asserts that this court may

review his statutory argument, which implicates due process, under either of these

exceptions.

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. In other words, we must interpret the 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). Since Gonzalez is the party attacking the statute, he carries the burden of

overcoming that presumption. See State v. Williams, 299 Kan. 911, 920, 329 P.3d 400

(2014).

Courts conduct a two-part inquiry to determine whether a criminal statute is so

vague that it is rendered unconstitutional: "(1) whether the statute gives fair warning to

those potentially subject to it, and (2) whether it adequately guards against arbitrary and

unreasonable enforcement. [Citation omitted.] 'At its heart the test for vagueness is a

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commonsense determination of fundamental fairness.' [Citation omitted.]" State v.

Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015), cert. denied 136 S. Ct. 858.

In this case, the district court instructed the jury on the offense charged in the

criminal complaint—unintentional but reckless second-degree murder under K.S.A. 2015

Supp. 21-5403(a)(2)—as well as the lesser included offense of reckless involuntary

manslaughter under K.S.A. 2015 Supp. 21-5405(a)(1). The court instructed the jury that

in order to find Gonzalez guilty of unintentional but reckless second-degree murder, the

State was required to prove that Gonzalez killed Bishop "unintentionally but recklessly

under circumstances that show extreme indifference to the value of human life." The

court then instructed the jury that if it did not agree Gonzalez was guilty of unintentional

but reckless second-degree murder, it should consider the lesser included offense of

involuntary manslaughter, which required the State to prove that Gonzalez killed Bishop

"recklessly." The term "recklessly" was defined for the jury as follows:

"A defendant acts recklessly when the defendant consciously disregards a

substantial and unjustifiable risk that a result of the defendant's actions will follow. This

act by the defendant disregarding the risk must be a gross deviation from the standard of

care a reasonable person would use in the same situation."

See K.S.A. 2015 Supp. 21-5202(j).

Gonzalez argues that the phrase "under circumstances manifesting extreme

indifference to the value of human life" as used in K.S.A. 2015 Supp. 21-5403(a)(2) is

unconstitutionally vague because it does not sufficiently describe the distinction between

the offense of reckless involuntary manslaughter and the offense of unintentional but

reckless second-degree murder.

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In State v. Robinson, 261 Kan. 865, 934 P.2d 38 (1997), the Kansas Supreme

Court considered whether the phrase "extreme indifference to the value of human life" is

unconstitutionally vague. There, the appellant argued that the statute setting forth the

offense of unintentional but reckless second-degree murder, or "depraved heart" murder,

was void for vagueness because it did not adequately distinguish itself from reckless

involuntary manslaughter. In upholding the statute, the Supreme Court held that the jury

would know, based on the language in the instructions, that the two statutes do not punish

the same crime:

"The phrase in the depraved heart murder statute requiring the 'extreme indifference to

the value of human life' indicates, as the legislature intended, that this statute requires a

higher degree of recklessness than that required by the reckless involuntary manslaughter

statute. If a jury is given a lesser included instruction on reckless involuntary

manslaughter, then the jury must assume that some killings fall under this crime. Thus,

the jury is put on notice that it must determine whether a reckless killing involves an

extreme degree of recklessness and is depraved heart murder or involves a lower degree

of recklessness and is involuntary manslaughter. The jury does this by determining

whether a particular reckless killing indicates an extreme indifference to the value of

human life which is beyond that indifference present in all reckless killings. [Citation

omitted.]" Robinson, 261 Kan. at 876-77.

The Robinson court found that juries are regularly asked to decipher many difficult

phrases without definition and that the phrase "extreme indifference to the value of

human life" is not so vague that a jury needs an instruction to explain it. The court found

the comments to the Model Penal Code depraved heart statute, upon which the Kansas

depraved heart statute is patterned, to be significant:

"'Given the Model Code definition of recklessness, the point involved is put adequately

and succinctly by asking whether the recklessness rises to the level of "extreme

indifference to the value of human life." As has been observed, it seems undesirable to

suggest a more specific formulation. [Other] variations . . . retain in some instances

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greater fidelity to the common-law phrasing but they do so at great cost in clarity.

Equally obscure are the several attempts to depart from the common law . . . . The result

of these formulations is that the method of defining reckless murder is impaired in its

primary purpose of communicating to jurors in ordinary language the task expected of

them. The virtue of the Model Penal Code language is that it is a simpler and more direct

method by which this function can be performed.' A.L.I., Model Penal Code &

Commentaries, Part II § 210.2, Comment 4, pp. 25-26 (1980)." (Emphasis added.)

Robinson, 261 Kan. at 877.

The Robinson court concluded:

"We hold that depraved heart second-degree murder requires a conscious

disregard of the risk, sufficient under the circumstances, to manifest extreme indifference

to the value of human life. Recklessness that can be assimilated to purpose or knowledge

is treated as depraved heart second-degree murder, and less extreme recklessness is

punished as manslaughter. Conviction of depraved heart second-degree murder requires

proof that the defendant acted recklessly under circumstances manifesting extreme

indifference to the value of human life. This language describes a kind of culpability that

differs in degree but not in kind from the ordinary recklessness required for

manslaughter." 261 Kan. at 877-78.

Our Supreme Court later affirmed its holding in Robinson in State v. Cordray, 277 Kan.

43, 48-52, 82 P.3d 503 (2004).

But Gonzalez argues that Robinson and Cordray are not controlling in this case

because: (a) The Kansas Supreme Court's holding in State v. Deal, 293 Kan. 872, 269

P.3d 1282 (2012), reflects a departure from its previous holding in Robinson; (b) the

statute defining recklessness has been amended since Robinson; and (c) the United States

Supreme Court's holding in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 192 L.

Ed. 2d 569 (2015), precludes us from relying on Robinson as precedent.

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a. State v. Deal

Gonzalez argues that the Kansas Supreme Court's holding in Deal blurred the line

between unintentional second-degree murder and involuntary manslaughter previously

drawn by the court in Robinson. We disagree.

In Deal, the appellant argued that because he intended to shoot the victim, he

necessarily intended to kill the victim, thus precluding a conviction for an unintentional

but reckless killing. In rejecting this argument, the Kansas Supreme Court held that the

unintentional second degree murder statute "focuses culpability on whether a killing is

intentional, not on whether a deliberate and voluntary act leads to death." 293 Kan. at

873. The court concluded there was sufficient evidence to establish "a realization of

danger and a conscious and unjustifiable disregard of that danger in circumstances

manifesting an extreme indifference to the value of human life" when Deal hit the victim

in the head with a metal bar. 293 Kan. at 885-86. Thus, Deal stands for the proposition

that the culpability requirement relates to the act of killing the victim and not to other acts

that may have led to the victim's death, such as the firing of a weapon. Accordingly, the

Supreme Court's holding in Deal does not reflect a departure from its previous holding in

Robinson.

b. Modified definition of recklessness

As Gonzalez correctly states, the definition of "reckless" was modified under the

2010 recodification of the Kansas criminal code. A person acts recklessly "when such

person consciously disregards a substantial and unjustifiable risk that circumstances exist

or that a result will follow, and such disregard constitutes a gross deviation from the

standard of care which a reasonable person would exercise in the situation." K.S.A. 2015

Supp. 21-5202(j).

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Previously, reckless conduct was "conduct done under circumstances that show a

realization of the imminence of danger to the person of another and a conscious and

unjustifiable disregard of that danger. The terms 'gross negligence,' 'culpable negligence,'

'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used

in this code." K.S.A. 21-3201(c).

Gonzalez argues that including the word "result" in the modified definition of

recklessness renders the phrase "under circumstances manifesting extreme indifference to

the value of human life" as used in K.S.A. 2015 Supp. 21-5403(a)(2) unconstitutionally

vague. Specifically, Gonzalez asserts that a person who consciously disregards a

substantial and unjustifiable risk that death will result from existing circumstances can be

convicted under both the reckless involuntary manslaughter statute and the unintentional

but reckless second-degree murder statute. We disagree. To convict a defendant charged

with unintentional second-degree murder, the State is required to prove not only that the

defendant consciously disregarded a substantial and unjustifiable risk that death will

result from existing circumstances but also that the defendant did so under

"circumstances manifesting extreme indifference to the value of human life." K.S.A.

2015 Supp. 21-5403(a)(2). Although recklessness is an essential element to prove the

offense in both statutes, the unintentional second-degree murder statute still requires an

additional element.

c. Johnson v. United States

Gonzalez next argues the United States Supreme Court's holding in Johnson

invalidates the Kansas Supreme Court's holding in Robinson. Again, we disagree with the

argument made by Gonzalez.

The single clause of the statute at issue in Johnson was the definition of "violent

felony," which was defined, in part, as "any felony that 'involves conduct that presents a

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serious potential risk of physical injury to another.'" 135 S. Ct. at 2555. The Johnson

Court began by acknowledging that it had attempted to discern the meaning of this clause

in four different cases over the past 8 years and, in two of the cases, there were dissenting

opinions filed that concluded the clause was vague. The Court noted that the uncertainty

regarding how to measure the risk posed by a crime in combination with the uncertainty

regarding the amount of risk it takes for a crime to qualify as a violent felony necessarily

produces an unpredictable and arbitrary result. The Court also noted that in its previous

decisions, it had resorted to different ad hoc tests to guide its inquiry regarding the level

of risk posed by a specific crime. 135 S. Ct. at 2558-59.

The Court ultimately decided the clause was unconstitutionally vague for two

reasons. First, the Court found tying the judicial assessment of risk to an imagined

"ordinary case" of a crime, rather than tying it to facts or statutory elements, created a

grave uncertainty about how to estimate the risk posed by that crime. 135 S. Ct. at 2563.

Second, the Court found there was too much uncertainty about the amount of risk it takes

for a crime to qualify as a "violent felony." 135 S. Ct. at 2558. The Court concluded the

clause violated the Due Process Clause because it was so vague it failed to "give ordinary

people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary

enforcement." 135 S. Ct. at 2556.

But the statutory clause at issue in Johnson stands in stark contrast to the

unintentional second-degree murder statute at issue in Robinson. Unlike the "grave

uncertainty about how to estimate the risk posed by a crime" created by tying "the

judicial assessment of risk to a judicially imagined 'ordinary case' of a crime," an

unintentional second-degree murder conviction is tied to unambiguous elements of the

crime provided in the statute. Johnson, 135 S. Ct. at 2557; see K.S.A. 2015 Supp. 21-

5403(a) ("Murder in the second degree is the killing of a human being committed: . . . [2]

unintentionally but recklessly under circumstances manifesting extreme indifference to

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the value of human life."). These specific elements, as well as statutory definitions related

to those elements, are then provided by way of instructions to the jury.

In sum, we conclude K.S.A. 2015 Supp. 21-5403(a)(2) conveys a sufficiently

definite warning of the proscribed conduct and guards against arbitrary and

discriminatory enforcement. The elements are expressly provided in the statute itself and

have time and again been found to be unambiguous and not capable of further

explanation. Accordingly, we conclude the statute, which is modeled after the Model

Penal Code language, is not unconstitutionally vague.

2. Sufficiency of the evidence

It was undisputed that Gonzalez shot and killed Bishop. Although conceding he

may have acted recklessly, Gonzalez argues the evidence simply does not support the

jury's conclusion that he acted under circumstances manifesting extreme indifference to

human life. More specifically, Gonzalez points to evidence at trial that establishes he did

not know the gun was loaded at the time he shot and killed Bishop, he did not intend to

shoot or kill Bishop, he did not remember chambering a round in his gun earlier in the

evening, he first pointed the gun at his own head, he was surprised and upset when the

gun discharged, and he immediately tried to get help for Bishop. At best, Gonzalez

argues this evidence supports a conviction of reckless involuntary manslaughter, which

only requires a showing of ordinary or simple recklessness.

When the sufficiency of the evidence is challenged in a criminal case, the

appellate court reviews all the evidence in the light most favorable to the prosecution.

The conviction will be upheld if the court is convinced that a rational factfinder could

have found the defendant guilty beyond a reasonable doubt based on that evidence. When

deciding whether there is sufficient evidence to support a conviction, the appellate court

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generally will not reweigh the evidence or assess the credibility of the witnesses. State v.

Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).

Reviewing all the evidence in a light most favorable to the prosecution, however,

Gonzalez' actions were sufficient for the jury to find he acted unintentionally but

recklessly under circumstances manifesting extreme indifference to the value of human

life. Gonzalez admitted to drinking a significant amount of alcohol prior to Bishop's

death. He testified that he had bought a 30-pack of beer and a bottle of champagne and

had started drinking around 8:30 or 9 p.m. After getting "pretty drunk" at the second

party, Gonzalez drove out of town to shoot his gun. Thereafter, Gonzalez continued to

drive around. At the time of his law enforcement interview, Gonzalez had a blood-

alcohol content of .25, more than three times the legal limit to drive.

Shortly before Bishop's death, there were accounts of Gonzalez chambering his

gun and otherwise acting careless with it. Schindler testified that Gonzalez was pointing

the gun around, "being stupid." Gonzalez also pointed his gun at Schindler's head, and

Schindler told him to stop. Gonzalez then chambered his gun as Syrokos approached,

scaring Syrokos. While Gonzalez testified that he did not remember pointing his gun at

Schindler's head or chambering the gun when he saw Syrokos, he did not doubt that he

had done so. And according to Gonzalez' testimony, he pointed the gun at his own head

and Bishop told him to stop. Gonzalez then pointed the gun at Bishop and pulled the

trigger. Gonzalez claimed he was shocked that the gun discharged and pulled the trigger

again. But Gonzalez admitted that he owned guns and that he was familiar with firearms.

Gonzalez' gun was tested, and the State presented evidence that the loaded chamber

indicator would show a person operating the gun that a cartridge was in the chamber and

that any time the chamber was loaded, the firearm would be cocked.

In sum, we find sufficient evidence in the record to support Gonzalez' conviction

of unintentional but reckless second-degree murder.

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3. Constitutional right to be present and to a public trial

After the jury retired for deliberations, it submitted the following question: "Can

you provide more clarification of the differences between the murder in the second

degree, committed unintentionally and the Involuntary Manslaughter?" There is no

discussion on the record about the jury's question. The record on appeal only includes the

jury's written question and a typed answer signed by the district court judge. The judge's

answer stated:

"Your question is whether I can provide more clarification of the differences

between murder in the second degree, committed unintentionally and the Involuntary

Manslaughter.

"Please refer to the instructions provided to you."

Gonzalez argues his constitutional rights were violated because the record does

not reflect that a question was asked by the jury during deliberations and because the

record does not reflect that he was present during discussion of how the question should

be answered. He argues these facts establish both a violation of his right to be present at

every critical stage of trial and a violation of his right to a public trial.

a. Right to be present at every critical stage of trial

Gonzalez argues the district court violated his constitutional rights to be present at

all critical stages of the trial because the record does not reflect his presence for any

discussion regarding the jury's question. Although Gonzalez did not raise this issue

below, our Supreme Court has held that the constitutional personal nature of a

defendant's constitutional right to be present at all critical stages means that the right

cannot be waived by counsel's mere failure to object. See State v. Verser, 299 Kan. 776,

788, 326 P.3d 1046 (2014). Therefore, we may address Gonzalez' argument, which raises

a question of law over which this court exercises unlimited review. See 299 Kan. at 787.

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K.S.A. 2015 Supp. 22-3420(d) specifically requires the defendant to be present

during the discussion of any written questions presented by the jury, unless the defendant

has waived his or her presence. Any act or omission violating K.S.A. 2015 Supp. 22-

3420(d) also violates the "'guarantee of the Sixth Amendment to the United States

Constitution that a criminal defendant may be present at every critical stage of his or her

trial.' [Citation omitted.]" See Verser, 299 Kan. at 788. If the record is silent regarding

whether the defendant was present or absent during the discussion of the jury's question

between the judge and the attorneys, then the court will presume that the defendant was

not present. See State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other

grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006).

We note, as a preliminary matter, that there is no evidence in the record that the

court discussed the jury's question at all. The record establishes only that a question was

submitted and that a response was given. Given the record is silent on this matter, we

must assume for purposes of our analysis that a discussion occurred and that it took place

without Gonzalez present. The federal constitutional harmless error standard applies to

violations of federal constitutional rights such as this one. Verser, 299 Kan. at 789. Under

this standard, Gonzalez' presumed absence from the discussion regarding the jury's

question constituted harmless error if this court finds beyond a reasonable doubt that it

did not affect the outcome of the trial in light of the entire record—that there is "'no

reasonable possibility that [it] contributed to the verdict.'" 299 Kan. at 789 (quoting State

v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594

[2012]). Appellate courts apply four factors to determine whether an error is harmless

under the constitutional standard:

"'(1) the overall strength of the prosecution's case; (2) whether an objection was lodged;

(3) whether the ex parte communication concerned a critical aspect of the trial or rather

involved an innocuous and insignificant matter, and the manner in which it was conveyed

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to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.'

[Citations omitted.]" Verser, 299 Kan. at 789-90.

See State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998) (setting out four factors

for considering whether court's communication with jury outside presence of defendant is

harmless error).

With respect to the first factor, the State's case against Gonzalez was strong and, as

previously determined, the evidence was sufficient to support the jury's finding of guilt

for unintentional but reckless second-degree murder. This factor weighs in favor of a

finding that the error was harmless.

With respect to the second factor, the record does not reflect that an objection was

lodged. Given the record's silence on this issue, however, the parties agree that this factor

may weigh equally.

With respect to the third factor, the substance of the jury's question related to a

critical aspect of trial, but the response given by the court was innocuous and

insignificant. See Verser, 299 Kan. at 789-90 (providing that nonsubstantive answer to

jury question—that material jury had asked to review had not been admitted into

evidence—favored harmless error finding); State v. Carter, No. 109,966, 2014 WL

3907095, at *4 (Kan. App. 2014) (unpublished opinion) (written answer that rephrased

jury instruction favored harmless error finding), rev. denied 303 Kan. __ (April 21,

2016). Here, the district court's response provided no substantive information but simply

directed the jury to follow the instructions it had already provided. Thus, this third factor

weighs in favor of harmless error.

With respect to the final factor, the record on appeal reveals that Gonzalez did not

pursue any posttrial remedies to correct the district court's presumed procedural error. See

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State v. Bowen, 299 Kan. 339, 358, 323 P.3d 853 (2014) (district court's failure to answer

jury question in defendant's presence was harmless error in part because defendant

pursued no posttrial remedies).

Upon consideration of the four McGinnes factors, we conclude there is no

reasonable possibility that Gonzalez' alleged absence from any discussion regarding the

jury's question impacted the jury's verdict. See Verser, 299 Kan. at 789.

b. Right to a public trial

The record does not reflect whether the process used by the district court to read

and respond to the jury's question was held outside the public's purview or merely off the

record in open court. Given the record is silent on this matter, we must assume for

purposes of our analysis that the process was held outside the public's purview. To that

end, Gonzalez separately argues that the district court violated his right to a public trial

and the public's right to open proceedings by doing so. For the reasons stated below, we

find the process used by the district court to read and respond to the jury's question does

not implicate Gonzalez' constitutional right to a public trial; thus, the district court did not

violate either Gonzalez' or the public's right by not holding the referenced proceeding in

open court.

"The Sixth Amendment to the United States Constitution guarantees that in all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an

impartial jury." State v. Cox, 297 Kan. 648, 655, 304 P.3d 327 (2013). Although the

United States Supreme Court has held that the Sixth Amendment right extends to certain

pretrial proceedings, see Presley v. Georgia, 558 U.S. 209, 213, 130 S. Ct. 721, 175 L.

Ed. 2d 675 (2010) (jury voir dire) and Waller v. Georgia, 467 U.S. 39, 43, 104 S. Ct.

2210, 81 L. Ed. 2d 31 (1984) (suppression hearings), the high court has never held it

attaches to all pretrial, trial, and posttrial proceedings. Relevant here, the United States

19

Supreme Court has never held that the right to a public trial extends to in-chambers

conferences. In fact, both the Supreme Court and lower federal courts have recognized

that the right does not extend so far. See Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 598 n.23, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (Brennan, J., concurring)

(right to public trial does not restrict judges in their ability to conduct side-bar and in-

chambers conferences); United States v. Ivester, 316 F.3d 955, 959 (9th Cir. 2003)

(questioning juror in chambers would not violate right to public trial). As there appears to

be no United States Supreme Court authority which holds that an in-chambers hearing

violates a defendant's right to a public trial, the process used by the district court here

cannot be deemed to contrary to any clearly established federal law.

Under the facts of this case, the process used by the district court to read and

respond to the jury's question outside the public purview does not implicate a

constitutional right to public trial under Kansas law either. In State v. Reed, 302 Kan.

227, 239-40, 352 P.3d 530, cert. denied 136 S. Ct. 344 (2015), our Supreme Court

adopted the following two-part "experience and logic" test to make this determination.

The first part of the test requires consideration of whether the place and process

historically have been open to the press and general public. The second part of the test

requires consideration of whether the public access plays a significant positive role in the

functioning of a particular process in question. 302 Kan. at 239-40. Both questions must

be answered affirmatively to implicate the public trial right.

With regard to the experience factor, we look to K.S.A. 2015 Supp. 22-3420,

which sets forth the procedure to be used by a district court in answering questions from

the jury. The statute was amended during the 2014 legislative session, and the

amendments became effective on July 1, 2014. Pursuant to K.S.A. 2015 Supp. 22-

3420(d) of the amended statute, the court is required to notify the parties of the question

and provide the parties an opportunity to discuss an appropriate response. This subsection

of the statute requires the court to "respond to all questions from a deliberating jury in

20

open court or in writing" and the defendant to be "present during any response if given in

open court, unless such presence is waived." (Emphasis added.) K.S.A. 2015 Supp. 22-

3420(d). Finally, K.S.A. 2015 Supp. 22-3420(d) provides that "[w]ritten questions from

the jury, the court's response and any objections thereto shall be made a part of the

record." Before the statute was amended, it contained no provision for answering jury

questions in writing. But as part of the amendment, the legislature added a provision that

expressly established a procedural rule which should be construed and applied

retroactively. Given we are to construe the statute retroactively, we use the amended

statute to decide whether the procedure for answering jury questions is one that

historically has been open to the press and general public.

The rule set forth in K.S.A. 2015 Supp. 22-3420(d) requires the district court to

make the jury's question, any objections, and the district court's response part of the

record, but the rule does not require the district court to read the question in open court,

affirmatively seek objections in open court, or give its response in open court. Finding no

other guidance on this issue, we are not persuaded the procedure for reading, discussing,

and responding to jury questions historically has been one that is open to the press and

general public. Thus, we find the "experience" requirement set forth in the first part of the

test has not been satisfied.

The second part of the test likewise has not been met because public access does

not play a significant positive role in the process of reading, discussing, and responding

to a jury question. K.S.A. 2015 Supp. 22-3420(d) advances and protects those interests

underlying the constitutional requirements of an open court by requiring that the

question, answer, and objection be included in the record. In this case, the jury's written

question and the judge's written response were ultimately filed with the district court and

included as part of the public record of Gonzalez' trial proceedings, as required. The only

portion of the proceedings arguably closed to the public was the reading, discussing, and

answering the jury question in open court. The courtroom was never closed to the public

21

during any time that Gonzalez and the jury were present in the courtroom conducting trial

proceedings. The process for reviewing, discussing, and responding to a jury question is

not a process so similar to the trial itself that the same rights attach, such as the right to

appear, to cross-examine witnesses, to present exculpatory evidence, and to exclude

illegally obtained evidence. None of these rights were placed in jeopardy because none

are implicated in the review, discussion, or resolution of questions from the jury. For

these reasons, we find that the "logic" requirement set forth in the second part of the test

has not been satisfied.

Under the facts presented in this case, we conclude the right to public trial did not

attach to the process of reading, discussing, and responding to the jury question

submitted; thus, the district court did not violate either Gonzalez' or the public's right by

reading, discussing, and responding to the jury question outside the public's purview.

4. Jury question

Gonzalez argues the district court committed reversible error in responding to a

question submitted by the jury during deliberations.

Again, the jury submitted the following question to the court during its

deliberations: "Can you provide more clarification of the differences between the murder

in the second degree, committed unintentionally and the Involuntary Manslaughter?" The

judge's answer stated:

"Your question is whether I can provide more clarification of the differences

between murder in the second degree, committed unintentionally and the Involuntary

Manslaughter.

"Please refer to the instructions provided to you."

22

As we noted earlier, it is impossible to know whether Gonzalez objected to the district

court's response or otherwise suggested a different response be given because there is no

discussion in the record about the jury's question.

After a jury has retired for deliberation, it may seek additional information on a

point of law from the district court. K.S.A. 2015 Supp. 22-3420(d). The Kansas Supreme

Court has set forth the following standard of review relating to such matters:

"A trial court may not ignore a jury's request submitted pursuant to K.S.A. 22-

3420(3) [the relevant statutory provision prior to its 2014 amendment] but must respond

in some meaningful manner or seek additional clarification or limitation of the request. It

is only when the trial court makes no attempt to provide a meaningful response to an

appropriate request or gives an erroneous response that the mandatory requirement of

K.S.A. 22-3420(3) is breached. Once the trial court attempts to give an enlightening

response to a jury's request or seeks additional clarification or limitation of the request,

then any issue as to the sufficiency or propriety of the response is one of abuse of

discretion by the trial court." State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995).

Our court has indicated that this passage from Boyd suggests a two-step analysis to

review a district court's response to a jury's question. First, we conduct a de novo review

to determine if the district court failed to respond to the jury's question or provided a

response to the question that was legally incorrect. If the district court did respond and

the response did not affirmatively misstate the law, we utilize an abuse of discretion

standard to evaluate the sufficiency or propriety of the response. See State v. Jones, 41

Kan. App. 2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010). A

judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or

unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v.

Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

23

Gonzalez argues that the district court's response directing the jury back to the

original instructions constituted a breach of the court's statutory duty to respond to the

jury's question in a meaningful manner. He suggests the district court should have instead

provided a response that set forth the distinction between unintentional second-degree

murder and involuntary manslaughter. Based on the Supreme Court's holding in Boyd,

however, "[i]t is only when the trial court makes no attempt to provide a meaningful

response to an appropriate request . . . that the mandatory requirement of K.S.A. 22-

3420(3) is breached." (Emphasis added.) 257 Kan. 82, Syl. ¶ 2. In this case, the court

referred back to the original instructions. The original instructions required the State to

prove Gonzalez killed Bishop "unintentionally but recklessly under circumstances that

show extreme indifference to the value of human life" in order to convict Gonzalez of

unintentional but reckless second-degree murder. The original instructions also provided

that if the jury did not agree Gonzalez was guilty of unintentional but reckless second-

degree murder, it should consider the lesser included offense of involuntary

manslaughter, which required the State to prove that Gonzalez killed Bishop "recklessly."

Given the original instructions sufficiently distinguished between the elements required

to prove the offense charged (unintentional but reckless second-degree murder) and the

lesser included offense (reckless involuntary manslaughter), we find the court's written

answer referring the jury back to the original instructions was a sufficient attempt to give

an enlightening response to the jury's question.

With respect to the sufficiency of the district court's response, "[w]hen the

question has already adequately been covered by the original instructions, the trial court

may decline to answer and may direct the jury to re-read the instructions already given."

State v. Peck, 237 Kan. 756, Syl. ¶ 6, 703 P.2d 781 (1985). Here, the district court issued

Instruction No. 11, which set forth the elements for the crimes of unintentional second-

degree murder and involuntary manslaughter. First, the jury was instructed that in order

to find Gonzalez guilty of unintentional second-degree murder, the State was required to

prove that Gonzalez killed Bishop "unintentionally but recklessly under circumstances

24

that show extreme indifference to the value of human life." The term "recklessly" was

defined for the jury, consistent with the definition set forth in K.S.A. 2015 Supp. 21-

5202(j). Next, the jury was instructed that if it could not agree that Gonzalez was guilty

of unintentional second-degree murder, it should consider the lesser included offense of

involuntary manslaughter. Involuntary manslaughter was defined as the killing of Bishop

"done recklessly," immediately followed by the same definition of "recklessly" as above.

Gonzalez suggests that a more meaningful response to the jury's question would

have been:

"You must assume that some reckless killings are involuntary manslaughter. You must

determine whether a particular reckless killing involves an extreme degree of

recklessness or involves a lower degree of recklessness. You do this by determining

whether a particular reckless killing indicates an extreme indifference to the value of

human life which is beyond that indifference present in all reckless killings. If you have a

reasonable doubt between the two offenses, you cannot convict Mr. Gonzalez of

unintentional second-degree murder."

But Gonzalez' suggested response would not have aided the jury, as it does little more

than restate information already set forth in the jury instructions. The elements of the

crimes of unintentional but reckless second-degree murder and reckless involuntary

manslaughter were provided in Instruction No. 11. Notably, Gonzalez did not object to

the elements instruction for either of these crimes or otherwise request any additional

definition or instruction on the crimes. The jury also was instructed on reasonable doubt:

"[w]hen there is a reasonable doubt as to which of two or more offenses defendant is

guilty, he may be convicted of the lesser offense only." The jury was further instructed

that its verdict must be unanimous. We presume the jury followed these instructions. See

State v. Sisson, 302 Kan. 123, 131, 351 P.3d 1235 (2015).

25

Because the jury's question in this case was already adequately covered by the jury

instructions defining the elements of the crimes, the district court did not abuse its

discretion by referring the jury back to the instructions. See Peck, 237 Kan. 756, Syl. ¶ 6;

see also State v. Novotny, 297 Kan. 1174, 1186, 307 P.3d 1278 (2013); State v. Wade,

295 Kan. 916, 923, 287 P.3d 237 (2012) (approving "the tack of simply directing the

jury's attention back to the instructions").

5. Limiting instruction

Before trial, the State filed a motion to introduce K.S.A. 2015 Supp. 60-455

evidence that it argued would show "intent, absence of mistake or accident, and a course

of conduct by the defendant." In the motion, the State detailed several prior instances

where Gonzalez had confrontations with others while using a handgun and while under

the influence of alcohol and/or narcotics, including his encounter with Syrokos on the

night Bishop was killed. The district court denied the motion after finding that the

evidence relating to these prior instances was not relevant to the crimes at issue. During

trial, however, the State asked the district court to reconsider the ruling. In relevant part,

the State claimed that Syrokos' testimony was admissible independent of K.S.A. 2015

Supp. 60-455 because that incident occurred around the same time as Bishop's death. In

response, defense counsel argued that this evidence should be excluded on grounds that it

was more prejudicial than probative. After hearing argument, the district court agreed

with the State and found that Syrokos' testimony was relevant to the issue of where

Gonzalez and his passengers were on the night in question and that this evidence was

therefore admissible outside of K.S.A. 2015 Supp. 60-455.

Gonzalez does not challenge the district court's decision to permit the State to

introduce Syrokos' testimony into evidence at trial. Instead, Gonzalez argues the court

erred by failing to give a limiting instruction to the jury regarding Syrokos' testimony that

he saw Gonzalez pull out his handgun and chamber a round shortly before Bishop was

26

killed. Gonzalez did not request a limiting instruction at trial, so on review we apply the

clearly erroneous standard. See K.S.A. 2015 Supp. 22-3414(3). The failure to give an

instruction is clearly erroneous only if failing to give the instruction was error and we are

firmly convinced that the jury would have reached a different verdict if the error had not

occurred. See State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011).

When evidence of prior bad acts or crimes is admitted at trial under K.S.A. 2015

Supp. 60-455, the Kansas Supreme Court requires the district court to give a limiting

instruction informing the jury of the specific purpose for its admission. See State v.

Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). But K.S.A. 2015 Supp. 60-455 does not

apply when the evidence at issue relates to crimes or civil wrongs committed

concurrently with the events surrounding the crimes for which the defendant is on trial.

See State v. King, 297 Kan. 955, 963-64, 305 P.3d 641 (2013). And that is precisely what

the district court found in this case: that Syrokos' testimony was relevant and admissible

independent of K.S.A. 2015 Supp. 60-455.

Generally speaking, all relevant evidence is admissible. K.S.A. 60-407(f). K.S.A.

60-401(b) defines relevant evidence as evidence having any "'tendency in reason to prove

any material fact.'" Bowen, 299 Kan. at 348. This definition encompasses two elements:

a materiality element and a probative element. Evidence is material when the fact it

supports is in dispute or in issue in the case. 299 Kan. at 348. Evidence is probative if it

has any tendency to prove any material fact. State v. Lowrance, 298 Kan. 274, 289, 312

P.3d 328 (2013). Evidence that Gonzalez chambered a round just minutes before shooting

and killing Bishop was clearly relevant because it was material and probative as to the

disputed issue of whether Gonzalez knew the gun was loaded when he shot Bishop. And

because the encounter at issue occurred near in time to the charged offenses in this

case—the aggravated assault and Bishop's death—this evidence was admissible

independent of K.S.A. 2015 Supp. 60-455. See King, 297 Kan. at 963-64. Thus, a

limiting instruction was simply not legally appropriate here. See State v. Williams, 295

27

Kan. 506, Syl. ¶¶ 3, 4, 5, 286 P.3d 195 (2012) (discussing K.S.A. 22-3414[3] and setting

forth progression of analysis and corresponding standards of review for deciding jury

instruction issue when party did not request instruction at trial). As a result, the district

court did not err in failing to sua sponte issue a limiting instruction.

6. Cumulative error

Finally, Gonzalez argues that even if he has not raised an issue which, standing

alone, requires reversal, the cumulative effect of the district court's errors warrants a new

trial. But "'[c]umulative error will not be found when the record fails to support the errors

raised on appeal by the defendant.' [Citation omitted.]" Novotny, 297 Kan. at 1191. When

the defendant fails to demonstrate "two or more trial errors not individually reversible,

the cumulative error doctrine is inapplicable." State v. Hilt, 299 Kan. 176, 200, 322 P.3d

367 (2014). Because Gonzalez has not established any errors in his conviction, there is no

cumulative error.

Affirmed.

* * *

ATCHESON, J., concurring: I join in the majority opinion in all respects except the

third section of the analysis addressing Defendant Pablo Alberto Gonzalez' arguments

regarding his right to a public trial and his right to be present in person and by counsel at

all critical stages of the prosecution. As to that section, I concur in the result only.