1 NOT DESIGNATED FOR PUBLICATION

No . 119,538

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.

R

USSELL D EAN B ASTON , Appellant

.

MEMORANDUM OPINION

Appeal from Douglas District Court; S ALLY D. P OKORNY , judge. Opinion on remand filed November 6 , 2020. Reversed and remanded with instructions.

Kasper Schirer , of Kansas Appellate Defender Office , for appellant.

Kate Duncan Butler , assistant district attorney, Charles E. Branson , district attorney, and Derek Schmidt , at torney general, for appellee.

B efore B RUNS , P.J., B USER , and B URGESS , S.J.

P ER C URIAM : This case returns to us on remand from the Kansas Supreme Court. We previously issued our opinion in this case on October 18, 2019. See Stat e v. Baston , No. 119,538 , 2019 WL 5287914 ( Kan. App. 2019) (unpublished opinion). Based on i ts recent decision in State v. Harris , 311 Kan. 816 , 467 P.3d 504 (2020), the Kansas Supreme Court summarily vacated the portions of our previous opinion relating to K.S.A. 2019 Supp. 21

- 6304(c) and directed us to reconsider Baston's conviction for criminal possession of a weapon by a felon. In light o f the holding in Harris , we conclude that Baston's conviction of criminal possession of a weapon by a felon must be reversed.2 F ACTUAL AND P ROCEDURAL B ACKGROUND

The facts of this case were set forth in our previous opinion and will not be repeated here. S ee Baston , 2019 WL 5287914, at 1

- 3

. In our earlier opinion, we affirmed Russell D. Baston 's convictions of theft, criminal possession of a weapon by a felon, and interference with law enforcement officers. In doing so, we rejected his challenges to the

con stitutionality of K.S.A

. 2019 Supp. 21

- 6304 . We also found that there was sufficient evidence presented at trial to establish that Baston possessed a weapon

— specifically a machete

— at the time of his arrest. Subsequently, Baston filed a p etition for r eview with the Kansas Supreme Court.

W hile Baston's p etition for r eview was pen ding, the Kansas Supreme Court decided Harris , w hich found the residual clause of K.S.A. 201 9 Supp. 21

- 6304(c)(1) to be unconstitutionally vague. See 311 Kan. at 817. On Septe mber 29 , 2020, our Supreme
Court summarily vacated those portions of our opinion finding that K.S.A

. 2019 Supp.
21

- 6304(c) was constitutional and that sufficient evidence supported Baston's conviction for criminal possession of a weapon by a felon. Further , we were ordered to reconsider Baston's conviction for criminal possession of a weapon in light of Harr is

. The following day, we issued an order grant ing leave to the parties to file supplemental brief s i f they desired to do so

. On October 13, 2020, Baston filed a supplemental brief. However, the State opted not to file a supplemental brief.

A NALYSIS

In H arris , the Kansas Supreme Court held that t he residual clause of K.S.A. 2019 Supp. 21

- 6304

— which made it illegal for a felon to possess " any other dangerous or deadly cutting instrument of like character "

— "is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement." 311 Kan. 816, Syl.; see K.S.A. 2019 Supp. 21

- 6304(c)(1)

. Our Supre me Court explained that this portion of the3 statute was facially unconstitutional because it fails to " ' convey sufficient clarity to those who apply the ordinance standards to protect against arbitrary and discrimination enforcement. ' " 311 Kan. at 824 (cit ing City of Lincoln Center v. Farmway Co

- Op, Inc ., 298 Kan. 540, 549, 316 P.3d 707 [2013]). As the parties are aware, we are duty bound to follow the precedent established by the Kansas Supreme Court. See State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017).

In this case, Baston was convicted of possessing a machete. Baston , 2019 WL 5287914, at *2

- 3 . Although we continue to believe that a machete is a knife

— and we think that even Crocodile Dundee would agree

— we recognize that it is not alway s "easy" to determine whether an object falls within the residual clause of K.S.A. 2019 Supp. 21

- 6 304. See Harris , 311 Kan. at 816 ( citing Crocodile Dundee [ Rimfire Films 1986 ] [ " That's not a knife .

. . That's a knife. "] )

. Nevertheless, determining th e types of objects that should be illegal to possess is a matter of public policy best left to the Kansas Legislature rather than the courts

. See In re Marriage of Hall , 295 Kan. 776, 784, 286 P.3d 210 (2012).

Here , the State expressly asked the jury to return a conviction under the residual clause of K.S.A. 2019 Supp. 21

- 63045(c)(1) . In particular, it was argued by the State during closing argument s :

"What do they all have? A handle and some sort of blade , be it pointy

— I mean, that's what all these different definitions

— you can use your common sense and life experience, and they've got sharp edges. Any other dangerous or deadly cutting instrument of like character. " (Emphasis added.)

Likewise, the State argued on appeal that the machete w as a "dan gerous or deadly cutting instrument of like character." Furthermore, in our previous opinion, we determined "that a reasonable finder of fact could conclude that a machete is a dangerous and potentially deadly cutting instrument." Baston , 2019 WL 5287914, at *5

.4 Because the Kansas Supreme Court has found the residual clause of K.S.A. 2019 Supp. 21

- 6304(c)(1) to be unconst itutionally vague , we must reverse Baston's conviction for criminal possession of a weapon by a felon. See State v. Murdock , 309 Kan. 585 , 591, 439 P.3d 307 (2019) ("[A] defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending.")

. We also note that in Harris , the Kansas Supreme Court reversed Harris' conviction and "remanded to the district court with instructions to dismiss the charge of criminal possession of a weapon by a convicted felon." 311 Kan. at 826

. Under the circumstances presented, we find that same remedy to be appropriate in this case. Finally, in light of our decision to reverse Baston's conviction for possession of a weapon by a convicted felon, it is not necessary for us to address the sufficie ncy of the evidence issue.

C ONCLUSION

For these reasons, we reverse Baston's conviction for criminal possession of a weapon by a convicted felon and remand this matter to the district court with instructions to dismiss this charge. N othing in this opini on shall have an impact on Baston's theft and
i nterference with a law enforcement officer convictions that were affirmed in our previous opinion.