Dаnte R. Beck appeals his conviction and sentence for aggravated escape from custody following a jury trial. Beck challenges the trial cоurt’s instruction on burden of proof, presumption of innocence, and reasonable doubt which adopted the language of PIK Crim. 3d 52.02. He further claims the trial court еrred in sentencing by applying a criminal histoiy which was not proved to a jury beyond a reasonable doubt. We reject Beck’s claims and affirm his conviction and sentence.
*785 Beck was convicted of aggravated battery in August 2002 and assigned to the Sedgwick County work release program. On September 23,2002, Beck left for work but nevеr returned to the adult sanction center where he was serving his sentence. Instead he accompanied his girlfriend to Montana. Beck was arrested on Seрtember 26, 2002, and he was subsequently convicted of aggravated escape from custody in violation of K.S.A. 2003 Supp. 21-3810. He was sentenced to 18 months’ imprisonment. Beck timеly appeals.
At trial, Beck objected to jury Instruction No. 6 which related to the burden of proof, presumption of innocence, and reasonable dоubt. Beck’s objection was overruled, and Beck now argues on appeal that it was error for the court to instruct the jury pursuant to PIK Crim. 3d 52.02.
“ When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversiblе error even if they are in some way erroneous. [Citations omitted.]' ” State v. Peterson,273 Kan. 217 , 221,42 P.3d 137 (2002).
The challenged instruction is drawn directly from PIK Crim. 3d 52.02. Instruction No. 6 reads:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“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 to be proved by the State, you should find the defendant guilty.”
Beck argues that the instruction is erroneous for three reasons. First, Beck argues that the language “[y]ou must presume that he is not guilty until you are convinced from the evidence that he is guilty” is misleading because of the use of the word “until.” Beck claims that the language “until you are convinced” misleads a jury into believing that it should expect to be convinced of thе defendant’s guilt because “until” means an expectation of an event that shall happen.
*786 Beck argues that the proper instruction should have substituted “unless” for “until” so that it would read “unless you are convinced.” He argues that the use of the word “unless” would not mislead the jury into believing that it must find Beck guilty because “unless” simply means an expectation of a future event which may happen.
Beck cites no authority directly supporting his claim. He cites
State v. Hundley,
The jury instruction given in this case was drawn directly from PIK Crim. 3d 52.02. The Pattern Instructions for Kansas were developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions, and while they are not required, they are strongly recommended for use by Kansas trial courts.
State v. Dias,
A number of defendants have challenged the tеrminology of the pattern instruction found in PIK Crim. 3d 52.02. The attacks have focused on everything from the instruction’s use of the phrase “not guilty” rather than “innocent,” to use of the phrase “claims by the state” rather than “elements of the crime.” Such semantic challenges have repeatedly been rejected by the Kansas Supreme Court. See
State v. Lopez,
Moreover, the Kansas Supreme Court has held that “the provisions of PIK Crim. 3d 52.02 accurately reflect the law of this State and properly advise the jury in а criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.”
Clark,
By focusing on one word, Beck ignores the remaining text of the instruction. When reviewing challenges to jury instructions, appellate courts must consider the instructions as a whole.
State v. Mims,
Beck’s argument is creative but not persuasive. The distinction between the words “until” and “unless” is subtle, given the natural usage of the words in common language. As used in this contеxt and reading the instructions as a whole, a jury could not reasonably have been misled about the presumption of Beck’s innocence.
Next, Beck claims thаt Instruction No. 6 was erroneous because of the language: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by thе State, you should find the defendant guilty.” Beck’s alleged error revolves around the use of the word “any.” Beck asserts that the use of the word “any” in this context allows for a conviction even if there are insufficient facts to support each element of the crime. According to Beck, the language deprived him of his constitutional right that a guilty verdict be beyond a reasonable doubt as to each element of the alleged crime.
Again, Beck is focusing on one word of the instruction in isolation from its context. The word “any” is used consistendy in the instruction. The sentence immediately preceding the language Beck finds objectionable states: “If you have а 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.” (Emphasis added.) We reject Beck’s argument that thе word “any,” as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: “To establish this charge, each *788 of the following claims must be prоved . . . (Emphasis added.) This language negates any potential confusion that may have been caused by the use of the word “any” in Instruction No. 6.
Beck’s final point of сontention with jury Instruction No. 6 is based on an inaccurate reading of the instruction. Beck asserts that Instruction No. 6 states that if the government has met its burden, then the jury “MUST find Mr. Beck guilty.” A review of jury Instruction No. 6 reveals no such language. The instruction reads: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) The word “should” is correctly used, and this language mirrors that found in PIK Crim. 3d 52.02.
Thus, when the instructions are viewed as a whole, the jury could not rеasonably have been misled about their meaning. The trial court did not err in giving Instruction No. 6 pursuant to PIK Crim. 3d 52.02. We reiterate the Kansas Supreme Court pronouncement that “the provisions of PIK Crim. 3d 52.02 accurately reflect the law of this State and properly advise the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.”
Clark,
Finally, Beck claims that his sentence violated the United States Supreme Court’s decision in
Apprendi v. New Jersey,
This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication that the court is departing from its previous position.
State v. Maybin,
Affirmed.