STATE OF KANSAS, Appellee, v. SHAMEKE CAESAR STRONG, Appellant.
No. 121,865
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed April 14, 2023.
317 Kan. 197 | 527 P.3d 548
WALL, J.
Review of the judgment of the Court of Appeals in 61 Kan. App. 2d 31, 499 P.3d 481 (2021). Appeal from Riley District Court; JOHN F. BOSCH, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
SYLLABUS BY
- To be legally appropriate, a jury instruction must fairly and accurately reflect the applicable law.
K.S.A. 2022 Supp. 21-5705(e) provides a mandatory, albeit rebuttable, presumption of a defendant‘s intent to distribute when that defendant is found to have possessed specific quantities of a controlled substance.- While courts generally have authority to determine whether a statute is unconstitutional, this power of judicial review is not unlimited. The separation of powers doctrine embodied in the Kansas constitutional framework requires the court exercise judicial review only when the constitutional challenge is presented in an actual case or controversy between the parties. Under this case-or-controversy requirement, parties must show (among other factors) that they have standing. Standing is the right to make a legal claim. To have such a right, a party generally must show an injury in fact; absent that injury, courts lack authority to entertain the party‘s claim. In this respect, standing is both a requirement for a case or controversy, i.e., justiciability, and a component of this court‘s subject matter jurisdiction.
- To establish an injury in fact sufficient to raise a constitutional challenge to a statute, a party must show that the statute affected the party‘s rights. Generally, if there is no constitutional defect in the application of the statute to a litigant, the litigant does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.
Review of the judgment of the Court of Appeals in 61 Kan. App. 2d 31, 499 P.3d 481 (2021). Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed April 14, 2023. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, argued the cause, and Jennifer C. Roth, of the same office, was with her on the briefs for appellant.
David Lowden, deputy county attorney, argued the cause, and Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
The opinion of the court was delivered by
WALL, J.: Shameke Caesar Strong challenges his conviction for possession with intent to distribute a controlled substance within 1,000 feet of a school under
At Strong‘s trial, the State presented evidence that Strong possessed more than 11 grams of methamphetamine. But rather than instructing the jury on the mandatory presumption in
Like two other cases decided this day, Strong‘s appeal raises a claim of instructional error and a constitutional challenge to
We agree with Strong that the district court‘s instruction was erroneous because it did not accurately describe
As to Strong‘s constitutional challenge to
Finally, Strong argues his sentence is unconstitutional under both the state and federal Constitutions because the district court judge, rather than a jury, determined his criminal history. But we hold that Strong‘s challenges to the constitutionality of his sentence are foreclosed by our precedent, and Strong provides no compelling reason for us to depart from that precedent. Thus, we affirm Strong‘s convictions.
FACTS AND PROCEDURAL BACKGROUND
In October 2018, police executed a search warrant for a residence located within 1,000 feet of a school in Manhattan. During the search, Strong exited a bedroom inside the house. When the police searched that bedroom, they found mail addressed to Strong (but with a delivery address different than the residence being searched), a digital scale, and a zippered sunglasses case. Inside the sunglasses case, officers found a plastic baggie containing 10.24 grams of methamphetamine; another plastic baggie containing 1.4 grams of methamphetamine; and 15 to 20 clean, empty plastic baggies.
At Strong‘s trial, Detective Michael Parr, who participated in the search of the residence, testified. Based on his experience, Detective Parr explained that methamphetamine users generally have only a small amount of methamphetamine with them at a time, usually around 1 gram. Methamphetamine dealers, on the other hand, will usually have a larger amount, which they will break down into smaller amounts to sell individually.
Strong testified in his defense. He said he did not live at the residence law enforcement searched, and he went there only to use the shower because of problems with the water main at his house. He brought his mail and a bag containing some clothes and hygiene products with him. But he denied knowing about the sunglasses case containing methamphetamine found in the bedroom.
The jury found Strong guilty of possession with intent to distribute within 1,000 feet of a school and possession of drug paraphernalia. The district court sentenced Strong to a controlling sentence of 186 months’ imprisonment. Strong appealed, and the Court of Appeals panel affirmed his convictions and sentence. State v. Strong, 61 Kan. App. 2d 31, 499 P.3d 481 (2021).
We granted Strong‘s petition for review and ordered the parties to provide supplemental briefing on whether Strong has standing to challenge the constitutionality of
ANALYSIS
I. The District Court Committed Instructional Error, but this Error Does Not Warrant Reversal of Strong‘s Conviction for Possession with Intent to Distribute a Controlled Substance Within 1,000 Feet of a School
Strong first raises a claim of instructional error. His claim focuses on Instruction No. 6, which told the jury it could, but did not have to, presume Strong intended to distribute methamphetamine, if he possessed at least 3.5 grams:
“You may presume that a person had the intent to distribute methamphetamine when the person possessed 3.5 grams or more. You may consider this presumption along with all other evidence in the case. You may accept or reject it in determining whether the State has met the burden to prove the required criminal intent of the Defendant. This burden never shifts to the Defendant.”
Instruction No. 6 generally reflects the language of the pattern jury instruction PIK Crim. 4th 57.022. The pattern instruction cites
“If you find the defendant possessed (450 grams or more of marijuana) (3.5 grams or more of heroin) (3.5 grams or more of methamphetamine) (100 dosage units or more containing insert name of controlled substance) (100 grams or more of insert name of any other controlled substance), you may infer that the defendant possessed with intent to distribute. You may consider the inference along with all the other evidence in the case. You may accept or reject it in determining whether the State has met the burden of proving the intent of the defendant. This burden never shifts to the defendant.” PIK Crim. 4th 57.022.
The key difference between Instruction No. 6 and the pattern instruction is the use of the word “presume.” Instruction No. 6 told the jury it “may presume” an intent to distribute and it “may consider this presumption along with all the other evidence in the case.” In contrast, the pattern instruction states that the jury “may infer” an intent to distribute and it “may consider the inference along with all the other evidence.” PIK Crim. 4th 57.022.
But Strong‘s argument is not based on the discrepancy between Instruction No. 6 and PIK Crim. 4th 57.022. Rather, Strong argues Instruction No. 6 was legally inappropriate because it did not accurately reflect
A. Relevant Legal Framework and Standard of Review
Appellate courts follow a multi-step process when reviewing instructional error issues. First, the court decides whether the issue was properly preserved below. Second, the court considers whether the instruction was legally and factually appropriate. Third, upon a finding of error, the court determines whether that error is reversible. State v. Douglas, 313 Kan. 704, 709, 490 P.3d 34 (2021). Whether the instructional error was preserved will affect the reversibility inquiry in the third step of this analysis. State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).
Strong did not object to the instruction he now challenges, so any error will be reviewed for clear error. Douglas, 313 Kan. at 710. And Strong does not challenge the factual appropriateness of the instruction. Instead, he argues only that the instruction was legally inappropriate. Our appellate review is unlimited when deciding whether the jury instruction fairly and accurately reflects the applicable law. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). Even if the instruction is legally inappropriate, that error will require reversal under the clear-error standard only if Strong firmly convinces us the jury would have reached a different verdict if the error had not occurred. Douglas, 313 Kan. at 710.
B. The Court of Appeals Panel Erred in Holding Instruction No. 6 Was Legally Appropriate
In addressing Strong‘s instructional challenge, the Court of Appeals panel held that Instruction No. 6 was legally appropriate. Strong, 61 Kan. App. 2d at 40-41. The panel interpreted
Strong argues the Court of Appeals panel erred in concluding that Instruction No. 6 is legally appropriate, and we agree. As noted, the panel held that Instruction No. 6 accurately reflects the law because
A plain language interpretation of
We begin our plain language interpretation with the statute‘s use of the term “rebuttable presumption.” As we explained in Holder, evidentiary devices such as presumptions and inferences exist along a continuum. 314 Kan. at 804. On one end, there is the permissive inference, which allows, but does not require, the jury to infer the elemental fact once the State has proved the predicate fact, and which places no burden of any kind on the defendant. Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Holder, 314 Kan. at 804 (citing Ulster County Court v. Allen, 442 U.S. 140, 156-57, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]). On the other end, there is the mandatory presumption, which “‘instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.‘” Holder, 314 Kan. at 804 (quoting Francis, 471 U.S. at 314).
Mandatory presumptions can be further divided into two camps—conclusive and rebuttable—with different legal effects. Holder, 314 Kan. at 804-05.
“‘A conclusive presumption removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted.‘” 314 Kan. at 804-05 (quoting Francis, 471 U.S. at 314 n.2).
In State v. Harkness, 252 Kan. 510, Syl. ¶ 12, 847 P.2d 1191 (1993), we limited the use of the term “mandatory presumption” to what the Francis Court dubbed a “conclusive
Thus,
Instruction No. 6 deviates from
Of course, when deciding whether a defendant intended to distribute a controlled substance, jurors may still draw reasonable inferences from the trial evidence. More specifically, the jury may reasonably infer an intent to distribute based on a defendant‘s possession of a large quantity of narcotics. See, e.g., Holder, 314 Kan. at 806 (“[A] defendant‘s possession of a large quantity of narcotics certainly may support an inference that the defendant intended to distribute the narcotic.“). And if such an inference is reasonably grounded in evidence, the prosecutor may also encourage the jury to make this inference. Nothing in this opinion, or in Holder, Valdez, Martinez, or Slusser, should be taken to suggest otherwise.
When viewed in isolation, one might argue that Instruction No. 6 is legally appropriate because it simply recites this basic evidentiary principle—that jurors may draw reasonable inferences from the evidence. But jury instructions “must always fairly and accurately state the applicable law.” (Emphasis added.) Plummer, 295 Kan. at 161. And while jurors remain free to make reasonable inferences from the evidence, Instruction No. 6 fails to incorporate the mandatory presumption in
The State believes Instruction No. 6 accurately reflects the statutory presumption in
According to the State,
But assuming, without deciding, that the statutory presumption in
In sum, the plain language of
C. The Instructional Error Does Not Require Reversal
Having concluded that the instruction was not legally appropriate, we next consider whether this error warrants reversal of Strong‘s conviction for possession with intent to distribute a controlled substance within 1,000 feet of a school. For reasons discussed below, we hold it does not.
Because Strong did not object to the instruction, the clear-error standard governs our reversibility analysis. Under that standard, we must reverse Strong‘s conviction if we are firmly convinced the jury would have reached a different verdict if the instructional error had not occurred. State v. Timley, 311 Kan. 944, 955, 469 P.3d 54 (2020). Strong has the burden to establish clear error. 311 Kan. at 955.
Upon review of the entire record, Strong has not firmly convinced us that the verdict would have changed but for the instructional error. If the district court had given a legally appropriate instruction that mirrored
If, on the other hand, the district court offered no instruction on the intent to distribute, the State still presented compelling evidence to support the jury‘s finding that Strong intended to distribute the methamphetamine in his possession. The evidence showed Strong possessed a total of 11.64 grams of methamphetamine. Detective Parr testified that methamphetamine users typically carry small quantities, usually around 1 gram. In contrast, methamphetamine dealers usually have a larger quantity.
The methamphetamine was also divided into two plastic baggies: one containing a larger amount and one containing about 1 gram. Detective Parr testified that based on his training and experience the smaller bag had originally come from the larger bag, which is how dealers usually break down their supply for individual sales. Detective Parr also found it significant that there was a digital scale and multiple new, clean plastic baggies near the controlled substances found in the bedroom. He testified that digital scales are commonly used in drug trafficking. And, according to Detective Parr, if a personal user of methamphetamine has empty baggies on them, then those baggies will usually be coated in residue from the methamphetamine.
Also, Strong‘s defense did not focus on the intent-to-distribute element of the crime. Thus, he did not show or argue that the methamphetamine was intended for personal use. Instead, his defense focused on whether he possessed the methamphetamine—another element of the offense. And Strong testified the methamphetamine was not his at all. Thus, the State‘s evidence establishing Strong‘s intent to distribute was essentially uncontroverted.
In Valdez, we found an instructional error was harmless for similar reasons. There, the district court gave an instruction patterned after PIK Crim. 4th 57.022, and we held the instruction was not legally appropriate because it did not fairly and accurately reflect the statutory presumption in
Strong tries to distinguish his case from Valdez. He points out that Riley County police recovered less than the 15 grams of methamphetamine recovered in Valdez. And the State did not introduce any text messages from Strong implicating him in a drug transaction. Finally, Strong notes that unlike Valdez, there is no evidence the digital scale recovered from the bedroom had any white residue on it.
At best, Strong‘s argument indicates that the State‘s evidence supporting defendant‘s intent to distribute in Valdez was not identical in all respects to the evidence presented at Strong‘s trial. But in both matters, the State presented ample evidence of defendant‘s intent to distribute, including evidence other than the weight of the methamphetamine in defendants’ possession. And again, Strong did not attempt to controvert this evidence as part of his defense. Thus, we conclude that Strong has not met his burden to show the district court committed clear error by giving Instruction No. 6.
II. Strong Does Not Have Standing to Challenge the Constitutionality of K.S.A. 2022 Supp. 21-5705(e)
Strong next argues
The Court of Appeals panel rejected Strong‘s argument and concluded that the statute was constitutional. The panel held that
On review, Strong argues the Court of Appeals panel erroneously held that
A. Standard of Review and Relevant Legal Framework
While courts generally have authority to determine whether a statute is unconstitutional, this power of judicial review is not unlimited. The separation of powers doctrine embodied in the Kansas constitutional framework requires the court exercise judicial review only when the constitutional challenge is presented in an actual case or controversy between the parties. Gannon v. State, 298 Kan. 1107, 1119, 319 P.3d 1196 (2014). Under this case-or-controversy requirement, parties must show (among other factors) that they have standing. Standing is the “right to make a legal claim.” 298 Kan. at 1121. To have such a right, a party generally must show an “injury in fact“; absent that injury, courts lack authority to entertain the party‘s claim. See 298 Kan. 1122-23 (Standing “is a component of subject matter jurisdiction.“); see also In re A.A.-F., 310 Kan. 125, 135, 444 P.3d 938 (2019) (“Kansas courts have authority—in other words, the judicial power—to hear only those matters over which they have jurisdiction.“). In this respect, standing is both a requirement for a case or controversy, i.e., justiciability, and a component of this court‘s subject matter jurisdiction. Gannon, 298 Kan. at 1122-23.
To establish an injury in fact sufficient to raise a constitutional challenge to a statute, a party must show that the statute affected the party‘s rights. State v. Coman, 294 Kan. 84, Syl. ¶ 3, 273 P.3d 701 (2012); see Ulster, 442 U.S. at 154-55 (“A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.“). “As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” 442 U.S. at 155; see Coman, 294 Kan. at 90.
In cases such as Strong‘s, in which the party is challenging the constitutionality of an evidentiary device such as an inference or presumption, the jury instructions will generally determine what type of device was applied in a case, although courts may need to look to the relevant statute and related caselaw in interpreting those instructions. Ulster, 442 U.S. at 157 n.16.
Whether a party has standing is a question of law over which this court has unlimited review. State v. Bodine, 313 Kan. 378, 385, 486 P.3d 551 (2021).
B. Strong Lacks Standing to Challenge the Constitutionality of K.S.A. 2022 Supp. 21-5705(e) ‘s Mandatory Rebuttable Presumption
While not explicitly using the word “standing,” the Court of Appeals panel effectively determined that Strong had standing to challenge the constitutionality of the statute because “[t]he jury instruction‘s discussion of the presumption of intent to distribute placed the statutory provision‘s presumption in front of the jury.” Strong, 61 Kan. App. 2d at 37. But the panel‘s holding is founded on its conclusion that the statute calls for a permissive presumption or inference. See 61 Kan. App. 2d at 38. If that were true, the jury instruction in Strong‘s case would have likely put the statutory presumption before the jury. But as discussed in Issue I,
In Martinez, 317 Kan. 151, slip op. at 14, we held that defendant lacked standing to bring a facial challenge to
But this difference in verbiage does not lead to a different outcome in Strong‘s case. Strong claims
Strong also argues he has standing to challenge
“Presumption or presumed is mentioned twice in the instructions. One instruction says you must presume the defendant to be not guilty. The other one is the instruction relating to the presumption that you can make with the amount of the methamphetamine when it tells you that you may presume that the person held it with intent to distribute.”
Based on these comments, Strong claims the prosecutor‘s argument described Instruction No. 6 to the jury in a manner consistent with the mandatory rebuttable presumption in
We are not persuaded by Strong‘s argument. Strong‘s constitutional challenge rests on
Granted, on one occasion, the prosecutor stated that Strong possessed “over three times the amount [of methamphetamine] that a person is presumed to have [intended to] distribute[].” (Emphasis added.) This language could suggest the presumption is mandatory. See Francis, 471 U.S. at 316 (jury instruction using words “is presumed” was “cast in the language of command“). But placing that comment in context, the prosecutor did not give the overall impression that the presumption described in Instruction No. 6 was mandatory. Rather, he repeatedly used permissive terminology to describe the evidentiary device, consistent with the express language in Instruction No. 6. See Bland v. Sirmons, 459 F.3d 999, 1015 (10th Cir. 2006) (presuming jury followed its written instructions even when the prosecutor misstated those instructions in closing argument).
It is also worth mentioning that Strong‘s arguments regarding the prosecutor‘s closing are readily distinguishable from the prosecutorial error claim raised in Slusser. There, the district court gave an instruction more closely patterned after PIK Crim. 4th 57.022, and this instruction permitted the jury to “infer” an intent to distribute if defendant possessed at least 3.5 grams of methamphetamine. But in closing argument, the prosecutor repeatedly described the evidentiary device as a “presumption” rather than a reasonable “inference,” and we held that this argument constituted prosecutorial error when measured against the plain language of the jury instruction. Here, the instruction does not use the terms “inference/infer.” And Strong does not take issue with the prosecutor‘s use of “presumption/presume” to describe the evidentiary device in the jury instruction. Thus, Strong‘s framing of the issue distinguishes this case from Slusser.
Because Strong has failed to show
Finally, Strong challenges the constitutionality of his sentence. The district court sentenced Strong pursuant to the Kansas Sentencing Guidelines Act, a graduated sentencing scheme which provides increasingly severe presumptive sentences for most convicted felons based on the severity level of the crime of conviction and the defendant‘s criminal history. A crime‘s severity level is determined by statute, and a defendant‘s criminal history score is calculated by considering and scoring the defendant‘s eligible prior convictions. See
Strong‘s constitutional challenges to his sentence arise from
We rejected an identical argument in State v. Albano, 313 Kan. 638, 487 P.3d 750 (2021). There, we held section 5 does not guarantee defendants the right to have a jury determine the existence of sentence-enhancing prior convictions because no authority substantiates the claim that defendants had such a jury trial right at common law when the Kansas Constitution was adopted. 313 Kan. 638, Syl. ¶ 4. And the Court of Appeals panel correctly held that Strong‘s section 5 challenge failed under Albano. Strong, 61 Kan. App. 2d at 41-42.
On review, Strong invites us to reconsider Albano but provides no new arguments as to why the decision reached an incorrect result or why more good than harm will come by departing from this precedent. See McCullough v. Wilson, 308 Kan. 1025, Syl. ¶ 5, 426 P.3d 494 (2018) (“An appellate court may decline to apply the doctrine of stare decisis if it is clearly convinced that the rule of law in issue was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.“). We thus decline Strong‘s invitation.
Strong also argues that
CONCLUSION
We hold that Instruction No. 6 was legally inappropriate because it did not fairly and accurately reflect the mandatory rebuttable presumption set forth in
We also hold that Strong lacks standing to challenge the constitutionality of
While we disagree with the panel‘s rationale on these two issues, we nevertheless affirm the Court of Appeals’ judgment affirming Strong‘s convictions. See State v. Brown, 314 Kan. 292, 306-08, 498 P.3d 167 (2021) (affirming Court of Appeals’ judgment as right for the wrong reason).
Finally, Strong‘s constitutional challenges to his sentence are foreclosed by Albano and Ivory. We thus affirm the Court of Appeals’ decision upholding Strong‘s sentence. Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed.
* * *
STEGALL, J., concurring: Here is what is going on. In 1985, the United States Supreme Court held that a “mandatory rebuttable presumption is . . . unconstitutional” because it “relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding“—thereby amounting to “unconstitutional burden-shifting.” Francis v. Franklin, 471 U.S. 307, 317-18, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).
Then, in 2012 the Kansas Legislature passed an amendment to
Following the PIK committee‘s work, it appears that—at least judging by the cases that have reached Kansas appellate courts—everyone involved at the trial court level (including prosecutors, defendants, and district court judges) has recognized the potential constitutional deficiencies in
But then our court began to weigh in. First in State v. Holder, 314 Kan. 799, 502 P.3d 1039 (2022), and State v. Valdez, 316 Kan. 1, 4, 512 P.3d 1125 (2022), and continuing today in Strong, Slusser, Martinez, and Bentley. State v. Strong, 317 Kan. 197 (No. 121,865, this day decided); State v. Slusser, 317 Kan. 174 (No. 121,460, this day decided); State v. Martinez, 317 Kan. 151 (No. 121,204, this day decided); State v. Bentley, 317 Kan. 230 (No. 123,185, this day decided). In the process, we have confused our broader jury instruction rules while steadfastly declining to reach the constitutional question at the heart of the matter. Here I will continue to explain my dissenting view—though framed as a concurrence in the result—begun in Valdez. 316 Kan. at 28 (Stegall, J., concurring).
Given the fact that, as noted above, the juries in these cases were all given the permissive inference instruction rather than an instruction containing the actual mandatory rebuttable presumption rule stated in
After discussing the question of legal appropriateness in Holder (but not reaching the
Instead of comparing PIK Crim. 4th 57.022 to
In today‘s cases, in response to these concerns, the majority makes it clear that permissive inferences are still lawful. The majority observes that “the jury may reasonably infer an intent to distribute based on a defendant‘s possession of a large quantity of narcotics” and that “if such an inference is reasonably grounded in evidence, the prosecutor may also encourage the jury to make this inference.” Strong, 317 Kan. 197, slip op. at 12.
Nevertheless, the majority insists that PIK Crim. 4th 57.022, while being a correct statement of the law, is still legally inappropriate because it “fails to incorporate the mandatory presumption” from
This is my takeaway—the rule created by the majority is that a legally correct jury instruction is not legally appropriate if it does not incorporate a statute that is almost certainly unconstitutional and is recognized as such by the PIK committee, by the parties to the underlying criminal litigation, and by the district court judges charged with giving the instructions. Such a rule cannot survive basic questioning.
For example, what if our Legislature passed a statute that simply said, “In Kansas, there shall no longer be a presumption of innocence in criminal proceedings.” Such a statute would be plainly and obviously unconstitutional. See State v. Ward, 292 Kan. 541, 570, 256 P.3d 801 (2011) (The right to a fair trial and presumption of innocence are guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.).
Assume that because of this brazen unconstitutionality, the PIK committee decides not to draft a pattern instruction implementing the statute. Additionally, the prosecutors of the State know not to request an instruction based on the statute, and the district court judges understand such an instruction would almost guarantee a reversal. Are we really to think that this court, following the rule of law we pronounce today, would say that jury instructions are erroneous and do not “fairly and accurately state the applicable law” if they don‘t tell the jury that “in Kansas a criminal defendant is not presumed innocent until proven guilty“? This is the kind of outcome I imagine in the mind of Mr. Bumble (of Dickensian fame) when he declared, “If the law supposes that, . . . the law is a[n] ass.” Dickens, Oliver Twist 451 (First Tor ed.: 1998 [1838]).
It seems to me the majority is hung up on the technical question of what is the “applicable
LUCKERT, C.J., joins the foregoing concurrence.