1

No. 121,927

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SHON FERRIS JACKSON,

Appellant.

SYLLABUS BY THE COURT

1.

In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the 

Supreme Court of the United States held that exercising a peremptory challenge against a 

prospective juror based solely on that person's race violates the Equal Protection Clause 

of the Fourteenth Amendment to the United States Constitution.

2.

There are at least two evils that arise from the State's use of peremptory challenges 

for race-based reasons. A defendant may be denied the right to equal protection under the 

law if he or she is tried by a jury from which members of his or her race have been 

purposefully excluded. And citizens who are excluded from jury service because of their 

race are denied an equal opportunity to participate in the judicial process.

3.

A Batson challenge must be raised in a manner that allows the district court to 

fashion a remedy in the event a violation has occurred. In Kansas, a Batson challenge 

must be raised before the unselected venire members are released and before the jury is 

sworn.
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Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed July 30, 

2021. Convictions affirmed, sentence vacated, and case remanded with directions.

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

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before WARNER, P.J., BUSER and CLINE, JJ.

WARNER, J.: A jury found Shon Jackson guilty of two counts of aggravated 

robbery and one count of criminal possession of a weapon. He now challenges the racial 

composition of the jury who heard his case under Batson v. Kentucky, 476 U.S. 79, 106 S. 

Ct. 1712, 90 L. Ed. 2d 69 (1986), noting that all the Black potential jurors in the jury pool 

were removed either for cause by the court or through peremptory challenges before the 

jury was empaneled. He also asserts the court should have instructed the jury that robbery 

and theft were lesser included offenses of aggravated robbery. And he claims that the 

court erred at sentencing when it treated a previous conviction from Missouri as a person 

offense and thus improperly calculated his criminal history score. 

After carefully reviewing the record, we find that the district court did not err 

when it overruled Jackson's Batson objection, as he raised that issue after the jury was 

sworn and all other potential jurors were dismissed. As such, he did not bring the matter 

to the court's attention within the time required by Kansas law, or when the court could 

take any meaningful action short of a mistrial that would allow the trial to proceed. We 

also find that instructions on robbery and theft were not factually appropriate in this case. 

But we agree—and the State concedes—that the court erred when it classified Jackson's 

earlier Missouri conviction as a person felony at sentencing. We therefore affirm 

Jackson's convictions but vacate his sentence and remand for resentencing.
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FACTUAL AND PROCEDURAL BACKGROUND

Early on the morning of May 14, 2018, a man with a handgun robbed a 7-Eleven

convenience store in Kansas City. The clerk described the person as a Black man wearing 

jeans, a black shirt, a white cloth on his head, and a black sleeve on his left forearm. The 

store's security camera, which recorded the robbery, confirmed this description.

Six days later, a Black man dressed in similar clothes—including a white 

headcloth and black sleeve on his arm—entered the 7-Eleven, took out a handgun and a 

small black bag, and demanded money and cigarettes. The clerk filled the bag with 

money and placed a carton of cigarettes on the counter. The man then ran out of the store

and down the street. The clerk came outside, and he and a customer began to drive 

around searching for the man. They saw him hiding behind a tree in a nearby field before 

he disappeared into a small wooded area. 

Police established a perimeter around the woods and sent officers, including a

canine unit, to search for the man. In a small clearing, the dog alerted to someone under a 

piece of plywood. A man, later identified as Jackson, told officers that they had found 

him and to get the dog. The dog bit Jackson's leg, and police placed him under arrest. 

Jackson, who had a tattoo on his left forearm and wore clothing matching the 

robber's, was subsequently searched. Police found a bag of marijuana and a black sock 

with the toe cut off. Officers also felt a bulge in Jackson's pant leg, to which he 

responded, "You just hit the jackpot." The bulge was a black bag containing money. And 

police found a handgun under some brush near where Jackson had been seen hiding 

earlier. After the search, Jackson was taken to a hospital to treat his bite wound.

The State charged Jackson with criminal possession of a firearm and two counts of 

aggravated robbery. At trial, Jackson testified he had not robbed the 7-Eleven. He stated 
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that he was homeless in May 2018 and spent time at a casino, where he often won. He 

testified that he was likely at the casino on May 14, and on May 20, he was going to meet 

someone to buy marijuana with his winnings. He explained that he wore the black sock 

over his tattoo to avoid attention from gangs. But given the amount of police activity that 

evening, his carrying marijuana, and his criminal record, Jackson decided to hide under 

the plywood to avoid being caught. 

After hearing the witnesses' testimony and considering the other evidence 

presented, the jury found Jackson guilty of the firearm possession and two aggravatedrobbery charges. The district court imposed a controlling 206-month prison sentence. 

DISCUSSION

Jackson raises three issues on appeal. First, he argues the district court erred when 

it denied his Batson challenge, as all Black prospective jurors were removed from the 

jury pool either for cause or through peremptory strikes. Second, he asserts that the court 

should have instructed the jury on the lesser included offenses of robbery and theft. And 

third, he claims the court miscalculated his criminal history score at sentencing by 

classifying a prior Missouri conviction as a person felony. For the reasons we discuss in 

this opinion, we find that Jackson has not shown the district court erred during his jury 

trial, either in overruling his untimely objection to the jury panel or in its instructions. But 

we agree that the court misclassified Jackson's Missouri conviction as a person felony.

1. The district court did not err when it found that Jackson did not raise a timely 

Batson challenge to the selection of the jury.

During jury selection, Jackson's attorney and the State questioned 45 potential 

jurors—a group commonly described as the venire or jury pool. As the selection process 

continued, the court excused four of these people for cause, finding their current 

circumstances or mindset prevented them from serving as impartial members of the jury. 
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See K.S.A. 22-3410(2)(i). Then, once the parties and the court had conducted their 

respective examinations, the parties agreed to allow the prospective jurors to leave the 

courtroom as they decided their peremptory challenges and selected a jury. 

Unlike challenges for cause, peremptory challenges can be used to remove 

prospective jurors from the venire for any nondiscriminatory reason. The aim of both 

challenges is the same—"to achieve an impartial jury." State v. McCullough, 293 Kan. 

970, 996, 270 P.3d 1142 (2012). The district court allowed Jackson and the State nine 

peremptory strikes each, with the goal of selecting of a 13-person jury panel—12 jurors 

and 1 alternate juror. By this process, the parties selected a jury and an alternate. The 

record does not reflect which potential jurors were struck by Jackson or the State. 

Before officially empaneling Jackson's jury, the court asked the parties if anyone 

had any objections. Both sides indicated they did not. The court thus invited the venire 

members back into the courtroom, called the jurors selected for the trial to the jury box, 

and dismissed the remaining venire. The court then administered the oath to the jury and 

released the jurors on their lunch break.

The 13 members of the jury were selected from the first 35 prospective jurors in 

the venire. Nine of those 35 prospective jurors were Black, but none of the Black

potential jurors were selected for the jury. The court had excused three Black prospective 

jurors for cause (out of the court's four cause-based determinations):

• One Black potential juror informed the court that his wife had recently suffered a 

heart attack, and he was her sole caretaker. The parties agreed that he should be 

excused for cause. 

• A second Black potential juror indicated she had recently been the victim of a 

crime and was not convinced she could decide the case fairly based on the 
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evidence. She also indicated that her husband had just gotten out of the hospital 

and she needed to be with him. Jackson's attorney indicated he had no objection to 

the court releasing this woman for cause, and the court did so.

• A third Black potential juror became angry as jury selection progressed, as the 

timing of the jury trial made it impossible for him to run his landscaping business. 

After a lengthy discussion outside the presence of the other members of the venire, 

the court excused him for cause, finding he had made up his mind that he could 

not be fair and impartial. Neither party objected to this man's dismissal.

The six remaining Black prospective jurors were removed by the parties' 

peremptory strikes. Again, the record before us does not specifically identify whether 

these individuals were struck from the jury by the State, by Jackson, or by some 

combination of the parties. But after the jury rendered its verdict, Jackson filed a motion 

for a new trial, indicating that all six individuals had been removed by the State. The 

State does not dispute this point. The resulting jury was composed of predominately 

white jurors, with 3 of the 13 jurors identifying as Hispanic or Native American.

Immediately after the court excused the now-sworn jury for lunch, Jackson's 

attorney conferred with Jackson. She then addressed the court, expressing "concern" that 

all the Black prospective jurors had been removed from the jury, though she was not sure 

whether she was "raising a Batson challenge." In response, the State argued that Jackson's 

objection to the jury composition was untimely, as it was made after the other prospective 

jurors had been released and the jury sworn. The court agreed, noting that Jackson had an 

opportunity to raise his concern to the State's peremptory strikes when those strikes were 

made. The court therefore overruled Jackson's objection, though it indicated it would 

allow Jackson to make a record of the reasons for his dissatisfaction after the lunch 

recess.
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When the trial resumed, Jackson's attorney indicated she did not realize all the 

Black prospective jurors had been struck until after the jury had been seated and the oath

administered. She acknowledged she did not object contemporaneously as the 

peremptory strikes were made, but she nevertheless wanted the prosecutor to explain his 

reasons for striking those six prospective jurors so there could be a record of the State's 

rationale. Relying on State v. Heiskell, 21 Kan. App. 2d 105, 896 P.2d 1106 (1995), the 

court once again found Jackson's objection untimely. And the court denied Jackson's 

request to question the prosecutor on the record. The court then brought the jury back into 

the courtroom, and the parties made their opening statements.

In Batson, the Supreme Court held that exercising a peremptory challenge against 

a prospective juror based solely on that person's race violates the Equal Protection Clause 

of the Fourteenth Amendment to the United States Constitution. 476 U.S. at 89. There are 

at least two evils that arise from the State's use of peremptory challenges for race-based 

reasons. A defendant may be denied the right to equal protection of the law if he or she is 

tried by a jury "from which members of [his or her] race have been purposefully 

excluded." 476 U.S. at 85. And citizens who are excluded from jury service because of 

their race are denied an equal opportunity to participate in the judicial process. 476 U.S. 

at 85. Indeed, the "very integrity of the courts is jeopardized when a prosecutor's 

discrimination 'invites cynicism respecting the jury's neutrality' . . . and undermines 

public confidence in adjudication." Miller-El v. Dretke, 545 U.S. 231, 238, 125 S. Ct. 

2317, 162 L. Ed. 2d 196 (2005).

Subsequent cases from the United States Supreme Court and the Kansas Supreme 

Court recognize that parties' jury-selection decisions are often motivated by more 

complicated considerations than racial discrimination. See 545 U.S. at 238; State v. 

Gonzalez-Sandoval, 309 Kan. 113, 120-21, 431 P.3d 850 (2018). Parties' decisions during 

jury selection can be "subject to myriad legitimate influences, whatever the race of the 

individuals on the panel from which jurors are selected." Miller-El, 545 U.S. at 238. For 
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this reason, courts generally presume "the legitimacy of prosecutors' strikes" unless a 

defendant can show that no such legitimate reason existed for those decisions or convince 

the court that the reasons offered are pretextual. 545 U.S. at 238; Gonzalez-Sandoval, 309 

Kan. at 120-21.

Batson established a three-step process for analyzing whether a particular use of 

peremptory strikes violates the Equal Protection Clause. First, the party raising a Batson

challenge must make a prima-facie showing that, based on the totality of the relevant 

facts, one or more peremptory strike was likely used for discriminatory reasons.

Gonzalez-Sandoval, 309 Kan. 113, Syl. ¶ 3. Once this initial showing has been made, the 

burden shifts to the State to provide the reason—including any nondiscriminatory 

reason—for its strike. 309 Kan. 113, Syl. ¶ 4. The defendant then has the ultimate burden 

of persuasion to convince the court whether the explanation given is a pretext for racial 

discrimination. 309 Kan. 113, Syl. ¶ 7.

Batson also recognized that equal-protection challenges are subject to practical 

and procedural limitations. Relevant here, the Batson Court suggested that a party must 

timely object to a peremptory challenge so that a district court could address and correct

any violations before a trial proceeds. See 476 U.S. at 99 ("We decline, however, to 

formulate particular procedures to be followed upon a defendant's timely objection to a 

prosecutor's challenges."). Later, in Ford v. Georgia, 498 U.S. 411, 111 S. Ct. 850, 112 

L. Ed. 2d 935 (1991), the Court clarified that state courts are free to define when and how 

a Batson objection must be raised. See 498 U.S. at 423 ("Undoubtedly, then, a state court 

may adopt a general rule that a Batson claim is untimely if it is raised for the first time on 

appeal, or after the jury is sworn, or before its members are selected.").

In Heiskell, we accepted the Supreme Court's invitation and held that a party must 

raise a Batson challenge before the jury is sworn in order for it to be considered. Heiskell, 

21 Kan. App. 2d 105, Syl. ¶ 1. In Heiskell, the defendant deliberately waited to raise his 
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Batson challenge until after the State had presented its first witness. This court found that 

this objection was raised too late to be considered, explaining that a party waives a 

Batson challenge by failing to object to a race-based peremptory strike in a manner that 

would allow the court to cure the discriminatory action. 21 Kan. App. 2d at 107-08. Put 

more simply, the Heiskell court held that a Batson challenge must be raised before the 

last juror, including any alternate jurors, is sworn. 21 Kan. App. 2d 105, Syl. ¶ 1.

In reaching this conclusion, Heiskell relied on the Fifth Circuit Court of Appeals' 

decision in United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir. 1987), which 

explained two "equally important" reasons for limiting the time frame in which an 

objection to a peremptory strike may be exercised:

• "'The "timely objection" rule is designed to prevent defendants from 

"sandbagging" the prosecution by waiting until trial has concluded unsatisfactorily 

before insisting on an explanation for jury strikes that by then the prosecutor may 

largely have forgotten.'" Heiskell, 21 Kan. App. 2d at 108 (quoting Forbes, 816 

F.2d at 1011).

• "'[P]rosecutorial misconduct is easily remedied prior to commencement of trial 

simply by seating the wrongfully struck venireperson. After trial, the only remedy 

is setting aside the conviction.'" Heiskell, 21 Kan. App. 2d at 108 (quoting 

Forbes, 816 F.2d at 1011).

Jackson acknowledges that he did not object to the composition of the jury or the 

State's use of peremptory strikes before the remaining prospective jurors were released 

and the jury sworn. But he argues that this court should revisit its decision in Heiskell and 

adopt a more elastic concept of timeliness. He also attempts to distinguish his Batson

challenge from the untimely objection in Heiskell, arguing that Heiskell's holding focuses 

on a person's intent in raising an objection at a certain time, not the timing alone. See 
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Heiskell, 21 Kan. App. 2d at 108 ("Because Heiskell intentionally waited until after the 

jury had been sworn before making his Batson claim, we conclude that he failed to 

preserve this issue for our review." [Emphasis added.]). These arguments present legal 

questions over which our review is unlimited. State v. Campbell, 308 Kan. 763, 770, 423 

P.3d 539 (2018) (preservation challenges are subject to plenary review).

As a preliminary matter, Jackson argues that Heiskell's main concern—preventing 

parties from strategically delaying a Batson challenge until after a jury is sworn and 

prejudice attaches—is not present in this case. In other words, Jackson asserts that 

Heiskell's rule was motivated by concerns of improper intent, not timing. But Jackson's 

description of Heiskell is incomplete. The Heiskell court was undeniably concerned by 

the defendant's strategic delay in that case, but it was the delay itself—waiting until after 

the unselected venire members had been dismissed, the jury sworn, and the trial 

commenced—that rendered the defendant's action so problematic. As Heiskell observed, 

the "timely objection rule . . . prevent[s]" a defendant from acting improperly. 21 Kan. 

App. 2d at 108. We thus turn to the reasons for Heiskell's timely objection requirement.

To start, we note that Kansas courts are not alone in our requirement that parties 

raise Batson challenges before the jury oath is administered. Courts across the country 

have held almost uniformly that a Batson challenge must be raised—at the latest—before 

the remaining venire members are dismissed and the jury is sworn. In adopting this rule, 

the federal Circuit Courts of Appeal have generally emphasized that the timely objection 

requirement allows courts an opportunity to remedy any error while the remaining 

prospective jurors are still present and available. See, e.g., Brewer v. Marshall, 119 F.3d 

993, 1002 n.13 (1st Cir. 1997) (requiring objection contemporaneous with challenged 

peremptory strike); McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996) (Batson 

challenges must be raised before the conclusion of jury selection); Government of Virgin 

Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir. 1986) (Batson objection was not timely 

because it was not raised before the end of jury selection); Morning v. Zapata Protein 
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(USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997) (Batson challenge is timely if it is raised 

before the jury venire is dismissed and trial commences); United States v. Romero–

Reyna, 867 F.2d 834, 837 (5th Cir. 1989) (timely Batson challenge must be raised before 

venire is dismissed and trial commences); United States v. Tomlinson, 764 F.3d 535, 536

(6th Cir. 2014) (Batson challenge was timely when it was raised while the venire was still 

in the courtroom and available); United States v. Williams, 819 F.3d 1026, 1029 (7th Cir. 

2016) (Batson challenge must be brought before the venire is dismissed, provided that the 

district court provided the parties an opportunity to raise objections); United States v. 

Parham, 16 F.3d 844, 847 (8th Cir. 1994) (Batson challenge must be raised, at the latest, 

"before the venire is dismissed and before the trial commences"); Dias v. Sky Chefs, Inc., 

948 F.2d 532, 533-34 (9th Cir. 1991) (a challenge to the composition of a jury was 

untimely when it was not raised until after the venire had been dismissed and the jury had 

been sworn); United States v. Jones, 24 Fed. Appx. 968, 976 (10th Cir. 2001) 

(unpublished opinion) (declining to reach a Batson challenge or remand the issue when 

district court was not given an opportunity to address the matter before the venire was 

dismissed); United States v. Cashwell, 950 F.2d 699, 704 (11th Cir. 1992) (Batson 

challenge must be raised as soon as possible and during jury selection).

State courts also require a timely objection to raise a Batson challenge. See Bell v. 

State, 535 So. 2d 210, 212 (Ala. 1988) (before jury sworn); People v. Cunningham, 61 

Cal. 4th 609, 662, 189 Cal. Rptr. 3d 737, 352 P.3d 318 (2015) (before jury sworn); State 

v. Robinson, 237 Conn. 238, 250, 676 A.2d 384 (1996) (before jury sworn); Idaho v. Ish, 

166 Idaho 492, 501, 461 P.3d 774 (2020) (before jury sworn and prospective jurors 

dismissed); Washington v. Commonwealth, 34 S.W.3d 376, 378 (Ky. 2000) (except for 

good cause, before jury sworn and jury pool dismissed); State v. Williams, 524 So. 2d 

746, 746 (La. 1988) (before entire jury panel sworn); State v. Aubrey, 609 So. 2d 1183, 

1185 (La. Ct. App. 1992) (Batson challenge must be raised contemporaneously with 

peremptory strike); Stanley v. State, 313 Md. 50, 69, 542 A.2d 1267 (1988) (before last 

juror sworn); People v. Knight, 473 Mich. 324, 348, 701 N.W.2d 715 (2005) (before jury 
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sworn); State v. Gomez, 721 N.W.2d 871, 885-86 (Minn. 2006) (before jury sworn); 

Thomas v. State, 517 So. 2d 1285, 1287 (Miss. 1987) (before jury sworn); State v. 

Parker, 836 S.W.2d 930, 935-37 (Mo. 1992) (before jury pool dismissed); State v. 

Parrish, 327 Mont. 88, 92, 111 P.3d 671 (2005) (issue waived unless raised before jury 

sworn and jury pool dismissed); State v. Covarrubias, 244 Neb. 366, 371, 507 N.W.2d 

248 (1993) (before jury sworn), overruled on other grounds by State v. Pierce, 248 Neb. 

536, 537 N.W.2d 323 (1995); Rousseau v. State, 824 S.W.2d 579, 581 (Tex. Crim. App. 

1992) (before jury sworn); State v. Harris, 289 P.3d 591, 595 (Utah 2012) (waived unless 

raised before jury sworn and jury pool dismissed); Hill v. Berry, 247 Va. 271, 273-74, 

441 S.E.2d 6 (1994) (unless permitted by court, before jury sworn); State v. Jones, 218 

Wis. 2d 599, 601-03, 581 N.W.2d 561 (Wis. Ct. App. 1998) (before jury sworn or the 

issue is waived). The only state that appears to have taken a different view is 

Washington, which requires people to bring a Batson challenge "at the earliest reasonable 

time while the trial court still has the ability to remedy the wrong." City of Seattle v. 

Erickson, 188 Wash. 2d 721, 729, 398 P.3d 1124 (2017).

The rule our court adopted in Heiskell thus aligns with the practices of the 

overwhelming majority of state and federal courts. It also comports with Kansas statutes 

governing jury selection, which generally require objections to the composition of the 

jury panel to be raised before the jury is sworn. See K.S.A. 22-3410(3) (challenges for 

cause); K.S.A. 22-3407(1) (challenges to jury panel selection).

More importantly, Heiskell's rule makes practical sense and aims to safeguard the 

rights Batson was designed to protect. A timely objection allows a court to remedy a 

Batson violation without unduly burdening the parties, the court, and the prospective 

jurors. If a meritorious Batson challenge is raised during jury selection, an improper 

peremptory strike may simply be disallowed. But the only remedy for a meritorious 

objection after dismissal of the venire members and administering the jury oath is to 

declare a mistrial—a form of relief Jackson never sought in this case—and to begin 
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proceedings anew. Starting over with a new jury panel imposes significant burdens on the 

court, the litigants, and the witnesses. 

These practical considerations are consistent with the Supreme Court's statements 

in Batson. Though the Batson Court declined "to formulate particular procedures to be 

followed upon a defendant's timely objection to a prosecutor's challenges," it discussed 

potential remedies for a State's discriminatory use of peremptory strikes. 476 U.S. at 99. 

The Court noted that, after a finding of intentional discrimination, district courts could 

choose to "discharge the venire and select a new jury from a panel not previously 

associated with the case" or "disallow the discriminatory challenges and resume selection 

with the improperly challenged jurors reinstated on the venire." 476 U.S. at 99 n.24. 

Neither option would be viable if the struck members of the panel had been dismissed or 

if a jury had already been sworn.

And requiring a party to raise a Batson challenge before the jury is sworn and the 

remaining venire released is the only way to safeguard the dual rights Batson aimed to 

protect. Batson sought to address the evils of racial discrimination suffered both by a 

person denied a jury of his or her peers and by the prospective juror who has been the 

target of that racial discrimination. Though considering an untimely objection could 

benefit the person raising a Batson challenge, it would provide no redress to the potential 

juror who has been improperly removed. See J.E.B. v. Alabama, 511 U.S. 127, 140, 114 

S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (noting that Batson challenges are designed to 

remedy "harm to the litigants, the community, and the individual jurors who are 

wrongfully excluded").

For these reasons, we adhere to our decision in Heiskell that a Batson challenge 

must be raised before the remaining venire members are released and the last juror is

sworn in order for it to be addressed. Heiskell, 21 Kan. App. 2d 105, Syl. ¶ 1. In so 

holding, we acknowledge that enforcing Heiskell's timely objection requirement means 
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that some potentially discriminatory actions will go unchallenged. In this case, for 

example, the practical result of the timely objection rule was that the district court had no 

opportunity to investigate the State's reasons for its peremptory strikes. At the same time, 

we note that by requiring parties to vigilantly abide by the Heiskell rule, we heighten 

parties' attentiveness to the possibility of discriminatory acts and preserve courts' ability 

to protect defendants' rights and the rights of prospective jurors from being denied the 

opportunity to serve for discriminatory reasons.

Applying this rule to the case before us, the district court did not err when it found 

Jackson had not raised a timely Batson challenge. The district court here gave the parties 

ample opportunities to raise Batson issues, specifically inquiring after the parties had 

completed their peremptory strikes whether either party had any objection or issue to 

raise. Even if Jackson and his counsel had not recognized at that time that all Black

potential jurors had been removed through peremptory strikes—a questionable assertion 

since the juror questionnaires indicated each prospective juror's race—Jackson 

nevertheless could have objected to the composition of the jury as the jurors were seated 

and before the remaining venire members were released. He did not do so. And he offers 

no reason for this oversight, except his attorney's statement that she typically does not 

"pay attention to that"—that is, racial considerations—"too much" when selecting a jury.

As a final matter, Jackson argues that even if the district court was generally 

correct when it found his Batson request was untimely, it should have nevertheless 

allowed him to question the prosecutor about the reasons for the peremptory strikes to 

"make a record" for later proceedings. We appreciate Jackson's efforts to record the 

State's reasons for its peremptory strikes while the memory of those actions was fresh. 

After all, when given the opportunity, appellate courts favor a more complete record that 

allows for a more complete review of the proceedings at trial. But we cannot say that the 

district court abused its discretion when it did not allow Jackson to question the 

prosecutor regarding his motives and thus engage in an untimely Batson analysis. And 
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given our holding that Jackson's objection was not timely presented, Jackson has not 

shown that he suffered any prejudice when the court ruled that it was too late to question 

the prosecutor. 

To summarize, a Batson challenge must be raised in a manner that allows the 

district court to fashion a remedy in the event a violation has occurred. This prerequisite 

entails not only specificity in the substance of the challenge, but also a critical timing 

element: The objecting party must raise the challenge before unselected venire members 

are released and before the jury is sworn. Because he raised his Batson objection after the 

court dismissed the unselected venire members and empaneled the jury, Jackson's 

objection was untimely, and the court could no longer take steps to correct any alleged 

discrimination and yet still allow the trial to proceed. The district court did not err when it 

overruled Jackson's Batson challenge.

2. Instructions on robbery and theft were not factually appropriate in this case.

Jackson also asserts the district court erred when it failed to instruct the jury on 

robbery and theft as lesser included offenses of aggravated robbery. Jackson 

acknowledges that he did not request these instructions at his trial. He therefore must 

demonstrate the instruction should have been given and the absence of the instruction 

was clearly erroneous. K.S.A. 2020 Supp. 22-3414(3).

In reviewing challenges to jury instructions, appellate courts engage in a multistep 

review. We first determine whether the omitted instruction was legally and factually 

appropriate. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). If the 

instruction was appropriate, we consider whether its omission requires reversal, applying 

either a harmless-error or a clear-error standard, depending on whether the error was 

raised to the district court. See 295 Kan. at 515-16. 
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The parties agree that instructions on robbery and theft would have been legally 

appropriate, as robbery and theft are both lesser included offenses of aggravated robbery. 

See State v. Plummer, 295 Kan. 156, 164, 283 P.3d 202 (2012) (theft); State v. Whitaker, 

255 Kan. 118, 128, 872 P.2d 278 (1994) (robbery). But they disagree as to whether those 

instructions were factually appropriate. Jackson argues that because the elements 

necessary to prove aggravated robbery would have been sufficient to prove robbery and 

theft, some evidence at trial supported giving these instructions. The State counters that 

instructions on robbery and theft would not have been appropriate in Jackson's case

because no one disputed that the robber used a dangerous weapon—the element which 

elevates simple robbery to aggravated robbery—at the 7-Eleven. 

After carefully reviewing the evidence presented and the parties' arguments at 

trial, we agree with the State. This case hinged on the identity of the man who robbed the 

7-Eleven. All the witnesses, including the clerks, described the robber using a handgun, 

and the security camera footage confirmed this. Jackson did not dispute these facts; his 

defense was that he was not the person who committed the robberies. Instructions 

regarding robbery and theft were therefore not factually appropriate in this case. A 

district court has no obligation to instruct the jury on factually inappropriate matters. The 

district court committed no error when it did not instruct the jury on those crimes. 

3. The parties agree that the case must be remanded for resentencing.

In his final claim on appeal, Jackson argues the court incorrectly calculated his 

criminal history score at sentencing by classifying his prior Missouri conviction for 

attempted first-degree statutory sodomy as a person felony. See State v. Jones, No. 

117,808, 2018 WL 4656409, at *5-8 (Kan. App. 2018) (unpublished opinion). The State 

agrees the crime should be categorized as a nonperson felony, noting the Missouri 

definition of "attempt" is broader than the definition under Kansas law. In light of this 
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error, we vacate Jackson's sentence and remand the case so Jackson may be resentenced 

using a correct criminal history score.

We affirm Jackson's convictions, vacate his sentence, and remand the case with 

directions.