State v. Jackson, 494 P.3d 225

May 14 and May 20, 2018: two robberies of a Kansas City 7-Eleven captured on camera; robber described as a Black man with a handgun, white headcloth, black sleeve and a forearm tattoo.
Police found Shon Jackson hiding under plywood after a canine alerted; he had a matching tattoo, clothing, a black sock with toe cut off, a bag with money on his person, marijuana, and officers found a handgun under nearby brush.
Jackson was tried for two counts of aggravated robbery and criminal possession of a weapon; the jury convicted him and the court imposed a 206-month controlling sentence.
During jury selection, 9 of the first 35 venire members were Black; three Black jurors were excused for cause and six Black venire members were removed by peremptory strikes (which the State later conceded it made).
Jackson did not object to the peremptory strikes before the remaining venire were dismissed and before the jury was sworn; defense counsel raised a Batson-type concern after the jurors were sworn and the jury was released for lunch.
At sentencing, the court classified a prior Missouri conviction (attempted first-degree statutory sodomy) as a person felony in Jackson's criminal-history calculation; on appeal the State conceded that classification was erroneous.

Issue	Jackson's Argument	State's Argument	Held
Timeliness of Batson challenge	Batson violation: all Black venire removed; challenge should be heard though raised after jury sworn	Objection was untimely because it was raised after venire dismissed and jury sworn; Heiskell requires pre-sworn challenge	Court: objection untimely under Heiskell; Batson waived because not raised before venire dismissed/jury sworn
Lesser-included instructions (robbery/theft)	Court should have instructed on robbery and theft as lesser included offenses of aggravated robbery	No factual basis: use of a dangerous weapon was undisputed and identity was the contested issue, so lesser offenses not appropriate	Court: instructions not factually appropriate; no error in omitting them
Sentencing classification of prior Missouri conviction	Prior Missouri attempted statutory sodomy should not be treated as a person felony for Kansas criminal-history scoring	State concedes Missouri "attempt" definition differs; conviction is a nonperson felony for scoring	Court: sentencing classification was error; convictions affirmed but sentence vacated and remanded for resentencing

Batson v. Kentucky, 476 U.S. 79 (1986) (peremptory strikes based on race violate Equal Protection)
Miller-El v. Dretke, 545 U.S. 231 (2005) (presumption of legitimacy for prosecutions' strikes and review for pretext)
Ford v. Georgia, 498 U.S. 411 (1991) (States may set timeliness rules for Batson objections)
J.E.B. v. Alabama, 511 U.S. 127 (1994) (Batson principles apply to harms to excluded jurors and litigants)
State v. Heiskell, 21 Kan. App. 2d 105 (1995) (timely Batson objection must be raised before jury sworn)
State v. Gonzalez-Sandoval, 309 Kan. 113 (2018) (Batson three-step framework and burden allocation)
State v. Williams, 295 Kan. 506 (2012) (standard for reviewing omitted jury instructions)
State v. Plummer, 295 Kan. 156 (2012) (theft as lesser included offense)
State v. Whitaker, 255 Kan. 118 (1994) (robbery as lesser included offense)

Outcome: Convictions affirmed; sentence vacated and case remanded for resentencing to correct criminal-history scoring.