1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 106,409

S TATE OF K ANSAS , Appell ee ,

v

.
M ICHAEL J ORDAN , Appell ant

.

SYLLABUS BY THE COUR T

The compulsory joinder rule set out in K.S.A. 21

- 3108(2)( a) is not a bar to a second prosecution unless evidence presented in an earlier prosecution was sufficient to convict of the crime or crimes charged in the second prosecution.

Review of the judgment of the Court of Appeals in an unpublished opinion file d October 5, 2012. Appeal from Sedgwick District C ourt; D AVID J. K AUFMAN , judge. Opinion filed March 25 , 201 6

. Jud gment of the Court of Appeals affirming the district court is affirmed

. Judgment of the d istrict c ourt is
affirmed

.

Randall L. Hodgkinson , of Kansas Appellate Defender Office , argued the cause and was on the brief for appellant.

Julie A. Koon
, assistant district attorney, argued the cause
, and Nola Tedesco Foulston , former district attorney, and Derek Schmidt , attorney general, were with her on the brief for appellee.2

The opinion of the court was delivered by

B EIER , J.: Defendant Michael Jordan appeals his conviction of felony theft by deception, arguing that the compulsory joinder rule of K.S.A. 21

- 3108(2)(a) barred his prosecution. We affirm Jordan's conviction.

F ACTUAL AND P ROCEDURAL B ACKGROUND

The State charged Jordan in two separate cases for conduct occurring in April
2010.

That month Jordan contacted Joshua Smith about a Mercedes he had for sale.
Sm ith gave Jordan a key so that Jordan could take the car for a test drive, and Jordan never returned. Smith reported the car stolen.

Nine days later, Jordan was pulled over while driving t he Mercedes in Wichita. After stopping the car , Jordan jumped out a nd ran, but he was quickly apprehended and
arrested . Police eventually learned that the license plate on the car did not belong on it and that the plate had been reported stolen a few days earlier.

In Jordan's first case, the State accused him of committ ing four traffic offenses. The case went to bench trial on stipulated facts, which included a police report filed after
Jordan was arrested. The district court judge found Jordan guilty o f three of the four charged offe ns es

.

In Jordan's second case, the o ne before us on appeal today, he faced two charge s ,

one for theft of the Mercedes by deception and one for intentionally obtaining control

over the stolen license plate. Before trial, Jordan's defense counsel moved to dismiss3

under K.S.A. 21

- 3108(2)(a), th e compulsory joinder rule, because of the admission of the police report i nto evidence in the trial of the first case . The district judge denied the
motion. After trial to the bench , Jordan was found guilty of theft by deception but was acquitted on the li cense plate charge.

On appeal to the Court of Appeals, Jordan challenged the district judge's r efusal to dismiss. The panel affirmed. See State v. Jordan , No. 106,409, 2012 WL 5869571 (Kan. App. 2012) (unpublished opinion). The panel relied primarily on this court's decision in
State v. Wilkins , 269 Kan. 256, 263, 7 P.3d 252 (2000), which held that K.S.A. 21

- 3108(2)(a) does not apply unless "the evidence presented in an earlier trial [was] sufficient to support a conviction sought in a later trial." T he p anel recognized

— in response to Jordan's argument

— that the statut e's text d id not explicitly require "sufficient
evidence" to have been introduced in a prior trial, but the panel considered itself duty bound to follow this court's precedent. Jordan , 2012 WL 5869571, at *2. According to the panel, at the trial on the traffic offenses, "the only element for theft by deception that was met by the police report was that Smith owned" the Mercedes; there was no evidence
of Jordan's intent or deceitfulness
, of the car being value d between $1,000 and $25,000,

or of the date or place of the theft

. 2012 WL 5869571, at *3.

D ISCUSSION

This case requires us to interpret or construe K.S.A. 21

- 3108(2)(a) , an exercise governed on appeal by a de novo or unlimited standard of review. State v. Looney , 299 Kan. 903, Syl. ¶ 2, 327 P.3d 425 (2014).

"The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett , 290 Kan. 41, 47, 223 P.3d 780 (2010). But if a statute is plain and unambiguous, this court will not speculate4

about legislative intent or turn to canons of construction or legislative history. State v.
Coman , 294 Kan. 84, 92, 273 P.3d 701 (2012). On the other hand, where a criminal statute is silent or ambiguous on a matter, the rule of lenity applies to mandate that the
statute be construed in favor of the accused. Cf

. State v. Thompson , 287 Kan. 238, 249, 200 P.3d 22 (2009) (statute silence or ambiguity on unit of prosecution construed in favor of defendant)." State v. Reese , 300 Kan. 650, 653, 333 P.3d 149 (2014).

Jordan pursues a two

- level attack on the panel's decision. First , he ur ges this court
to overrule Wilkins

. Failing that, i n the alternative, Jordan argues that the State presented
sufficient evidence of his involvement in the theft of the Mercedes by deception at the
traffic offense bench trial , meaning the Wilkins rule wa s s atisfied and the compulsory joinder rule should have p reclud e d his s econd prosecution.

"Under the compulsory joinder rule , if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution." Wilkins , 269 Kan. at 260; see In

re Berkowitz , 3 Kan. App. 2d 726, 742, 602 P.2d 99 (1979). "The objective of the compulsory joinder rule is to further the constitutional guaranty against multiple trials." Berkowitz , 3 Kan. App. 2d at 734; see 22 C.J.S. Criminal Law § 314 (statutory compulsory joinder provisions expand proscription of double jeopardy beyond constitutional protections). And this court has long held that the object of K.S.A. 21

- 3108( 2)(a) "is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged, and then in effect retrying the defendant for the same offense in a trial where it is charged." State v. Mahlandt , 231 Kan. 665, 668, 647 P.2d 1307 (1982). Kansas has long subscribed to the compulsory joinder doctrine. See Berkowitz , 3 Kan. App. 2d at 735 (tracing doctrine's origin in Kansas to legislative action in 1935).5

At the time of Jordan's trial, K.S.A. 21

- 3108(2)(a) provided:

"(2 ) A prosecution is barred if the defendant was formerly prosecuted for a
different crime

. . . if such former prosecution:

"(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely . . . ."

There are three requi rements for application of the compulsory joinder provision to bar a prosecution, occasionally referred to as the Berkowitz test: "'(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior
case.'" Wilkins , 269 Kan. at 260 (quoting Berkowitz , 3 Kan. App. 2d at 743). Jordan and the State agree that the first and third requirements have been met here . This appeal turns

on the second requirement

— evidence of the crimes charged in the second case was

a dmitted at the first trial

.

In Wilkins , this court read a demand for sufficiency into the evidence requirement :

"In order for K.S.A. 21

- 3108(2)(a) to apply, the evidence presented in an earlier trial needs to be sufficient to support a conviction sought in a later trial. There needs to be
more than a me re scintilla of evidence. A slight or passing reference to evidence will not be enough to trigger the application of K.S.A. 21

- 3108(2)(a). See Spring, The Effect of
Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec.
21

- 3108 , 9 Wash. L.J. 179, 185 (1970) (noting that evidence must be sufficient to support conviction in subsequent prosecution). The fact that some evidence used in the first trial6

is also used in the second trial does not necessarily bar prosecution. State v. Edgin gton , 223 Kan. 413, 417, 573 P.2d 1059 (1978). The question is whether the second crime was proved by the admission of evidence of the second crime in the first trial. State v.
Barnhart , 266 Kan. 541, 544, 972 P.2d 1106 (1999). To determine this, we adopt a test similar to that used when challenging the sufficiency of evidence on appeal. In order to satisfy the second prong of the Berkowitz test, a defendant must show that the evidence presented at the first trial, when viewed in a light most favorable to t he defendant, would lead a rational factfinder to find the defendant guilty beyond a reasonable doubt of the
crimes in the second trial." Wilkins , 269 Kan. at 263.

Jordan relies on the plain language of K.S.A. 21

- 3108(2)(a) to argue that the
statute's u se of the word "evidence" does not require a particular quantum of evidence to be admitted in a prior trial and that Wilkins improperly demanded su fficient evidence to
convict. In his view, t he admission of any evidence of a crime charged in a later

procee ding at a prior trial would support application of the compulsory joinder rule and mandate dismissal of the second prosecution.

Wilkins was decided before articulation of our modern pattern for interpretation of clear statutes and construction of ambiguou s ones. See , e.g ., Reese , 300 Kan. at 653

. Under this pattern , we first interpret a s tatute's plain language; if the statutory language is unclear, we move to construction

— employing canons, search ing legislative history, and identifying substantive background considerations

— to define and accomplish legislative

purpose

.

Although Wilkins predates this pattern, we note that the legislature has not seen fit in the past 15 years to pass a n a mendment to the statut ory language to contradict or
undercut th e Wilkins sufficiency rule

. L egislative inaction may not be the strongest indicator of specific legislative purpose, see State v. Quested , 302 Kan. 262, 279, 352 P.3d 553 (2015)
, but it is an indicator. And we have observed several times over that7

today's policy m akers in the two other branches of state government and those who
influence their work do not hesitate to take corrective act ion when they disagree with this court's reading or application of legi s lative language

. See State v. Tahah
, 302 Kan. 783,
786

- 87 , 358 P.3d 819 (2015), cert. denied February 29, 2016 (recognizing legislative action to abolish lesser included offenses of felony murder in response to State v. Tahah
, 293 Kan. 267, 262 P.3d 1045 [2011]); State v. Keel , 302 Kan. 560, 563, 357 P.3d 251 (2015) (recognizing legislative action for scoring presentencing guidelines convictions in response to State v. Murdock , 299 Kan. 312, 323 P.3d 846 [ 2014 ] , modified by Supreme
Court order September 19, 2014)

.

We are also influenced by stare decisis , which is not a rigid inevitability but a prudent governor on the pace of legal change. See Quested , 302 Kan. at 271 (doctrine particularly compelling when legislature free to alter statute in response to court precedent but declines to do so)

.

Under these circumstances, we decline Jordan's invitation to overrule Wilkins
wholesale

.

We do , however, have one remaining Wilkins language bother. It appears that the word "would" should be replaced by the word "could" in the following sentence from the
Wilkins opinion : "In order to satisfy the second prong of the Berkowitz test, a defendant must show that the evidence presented at the first trial, when viewed in a light most favorable to the defendant, would lead a rational factfinder to find the defen dant guilty beyond a reasonable doubt of the crimes in the second trial." 269 Kan. at 264. Sufficiency is a possibility concept, not a probability concept. See State v. LeClair
, 295 Kan. 909, 911, 287 P.3d 875 [2012] ) ( admitted evidence of crime sufficient as matter of law if
factfinder could convict). We see nothing in the K.S.A. 21

- 3108(2)(a) 's statement of the compulsory joinder rule or its purpose as discerned by the Wilkins court that dicta t es8

allocation of the higher "would" burden on a def endant seeking t o bar a second prosecution.

With the Wilkins rule still in place, we also reject Jordan's alternative challenge to his conviction. Although there was some evidence presented in the traffic offenses bench
trial that Jordan had deprived Smi th of his Mercedes, there was nowhere near sufficient evidence of all of the elements of theft by deception. For example, there was n o evidence
of deception apparent from or even suggested by the police report, which formed the bulk, if not the entirety, o f the content of the parties' stipulat ion

.

C ONCLUSION

Defendant Michael Jordan was not entitled to claim the protection of the compulsory joinder rule in K.S.A. 21

- 3108(2)(a) . We affirm the decision of the Court of Appeals and the judgment of the d istrict c ourt.

* * *

J OHNSON , J., dissenting: I dissent, because the court in State v. Wilkins , 269 Kan. 256, 7 P.3d 252 (2000), was wrong to rewrite the compulsory joinder statute to the detriment of the criminal defendant to which it applied. Wilkins not only violated the
decades

- old rule of strict construction, but it diluted the purpose of the statute by making joinder less compulsory for the State. It is this court's obligation

— not the legislature's

— to right its own prior wrongs, and the doctrine o f stare decisis was never designed to perpetuate law that was originally erroneous. If we were not going to take a critical look
at the bona fides of Wilkins ' cut

- from

- whole

- cloth "sufficiency of the evidence" holding, we should not have granted the petiti on for review and simply left Wilkins ' court

- made law as the binding precedent.9

To be clear, the issue here is one of statutory interpretation, not common law. The Berkowitz test referred to in Wilkins is simply one Court of Appeals panel's attempt at

par sing and enumerating the statutory requirements for compulsory joinder. See In re Berkowitz , 3 Kan. App. 2d 726, 743, 602 P.2d 99 (1979). Accordingly, the question in
Wilkins was not what it takes "to satisfy the second prong of the Berkowitz test," 269
Ka n. at 263, but rather what the legislature meant by the words: "the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution." K.S.A. 21

- 3108(2)(a).

The first thing to note is that the legislature did not say that a subsequent prosecution is barred when it is for a crime or crimes which were proved in a former prosecution. That would have been an easy, straight

- forward way to say what Wilkins requires. In essence, Wilkins effected that result by rewrit ing the statute to read: "the subsequent prosecution is for a crime or crimes of which [sufficient] evidence [to support a conviction of the defendant] has been admitted in the former prosecution." 269 Kan. at 259. Adding language to a statute was an impr oper way to construe it, even way back in the year 2000.

The majority appears to excuse Wilkins ' language

- adding tack by suggesting that
the Wilkins court was not enlightened about our "modern pattern for interpretation of
clear statutes and constructio n of ambiguous ones." Slip op. at 6. But 50 years ago

— three
and a half decades before the Wilkins decision

— this court rather explicitly set forth the fundamental rule that should have guided Wilkins ' statutory construction, to

- wit:

" It is a fundamental ru le that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. ( State v. Waite , 156 Kan. 143, 131
P.2d 708 [1942] ; State v. Six Slot Machines , 166 Kan. 361, 201 P.2d 1039 [1949] ; State v.10

Hill , 189 Kan . 403, 369 P.2d 365 [1962] ; State v. Wade , 190 Kan. 624, 376 P.2d 915 [1962] .) The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. ( State v. Foster , 106 Kan. 852, 189 P ac . 953 [1920] .) Such a

statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. ( State v. Terry , 141 Kan. 922, 925, 44 P.2d 258 [1935] .) " State
, ex rel.
, v. Am erican Sav ings Stamp Co. , 194 Kan. 297, 300, 398 P.2d 1011 (1965)

.

The ordinary meaning of the ordinary words, "a cri me or crimes of which evidence
h as been admitted in the former prosecution
, " is simply that the court in the prior prosecution admitted evidence of the subsequently prosecu ted crime. It does not mean that evidence admitted in the former prosecution proved the defendant guilty of the subsequent crime. Moreover, "[i]f . . . there are two reasonable and sensible interpretations of a criminal statute, the rule of lenity requires the court to interpret its meaning in favor of the accused. " (Emphasis added.) State v. Coman , 294 Kan. 84, 97,
273 P.3d 701 (2012)

.

Further, Wilkins appears to contradict the very precedent upon which it relies.
Wilkins ' author was the same justice who, the year before, had authored State v. Barnhart, 266 Kan. 541, 972 P.2d 1106 (1999) . Curiously, Wilkins cited to Barnhart for the proposition that "[t] he question is whether the second crime was proved by the admission
of evidence of the second crime in the first trial. " (Emphasis added.) 269 Kan. at 263

. Yet, Barnhart does not actually say that. Rather, it explained that its view was that the legislature intended for K.S.A. 21

- 3108(2)(a) to give the State two choices:

"[T he State] can: (1) either consolidate the two cases or charge all the crimes in one charging instrument whereby evidence of all the crimes charged would be admissible; or (2) the State can elect to have separate trials and not use evidence of the second o ffense in the first trial. This statutory construction does not disadvantage either the State or the11

accused and conserves time and the expense required to present the same evidence in two
trials." 266 Kan. at 549.

Barnhart comports with the statutory la nguage; Wilkins requires a rewriting of the

statute.

Wilkins ' impetus to rewrite the statute appears to have been its concern that "a mere scintilla of evidence" could bar a subsequent prosecution. Consequently, it opined that "[a] slight or passing refe rence to evidence will not be enough to trigger the application of K.S.A. 21

- 3108(2)(a)." 269 Kan. at 263. But the introduction of evidence of the subsequently prosecuted crime at the first trial is never enough, standing alone, to trigger the application of the compulsory joinder statute, even if that admitted evidence convincingly proved the defendant's guilt of the second offense. The touchstone of the compulsory joinder statute is that the subsequently prosecuted crime could have been joined in the form er prosecution, i.e. , "might have been included as other counts in the complaint, indictment or information filed in [the] former prosecution." K.S.A. 21

- 3108(2)(a). Without a permissible joinder, there is no bar to a subsequent prosecution,
with or withou t previously admitted evidence. The point of the statute appears to be that the State should subject the defendant to only a single trial, rather than serial prosecutions, if the laws governing joinder permit it. But if the State elects to subject a
defend ant to multiple trials, it cannot try out the evidence of the second crime in the first trial, even a little bit.

The majority is moved by the fact that the legislature has not chosen to amend
K.S.A. 21

- 3108(2)(a) to correct Wilkins ' interpretation. Wit h tongue firmly in cheek, I would say that the persons harmed by Wilkins ' holding

— wrongfully prosecuted criminal
defendants

— simply have not yet enlisted the help of lobbyists powerful enough to convince legislators to sponsor or support such soft

- on

- crime legislation. Of course, an12

election year might not be the best time to attempt that Herculean task. There are good reasons that we place little value on legislative inaction
, and this case illustrates one of
them.

I am likewise unpersuaded by the majorit y's half

- hearted invocation of the
doctrine of stare decisis . In the first place, I do not understand the concept of partial stare decisis which the majority apparently employs. While saying that stare decisis applies,
which would bind this court to Wilkin s ' precedent, the majority proceeds to modify the language of Wilkins ' holding to correct an error in Wilkins ' statutory interpretation. It would seem that if a court is modifying the holding of a prior case, it is not binding itself to that precedent. But cf. Miller v. Johnson , 295 Kan. 636, 653, 289 P.3d 1098 (2012) (declaring stare decisis mandated following the result of a prior case while rejecting prior case's rationale for its holding). In other words, if the constraint of stare decisis does not

prev ent the majority's correction of Wilkins ' erroneous use of "would" instead of "could," it would not prevent the correction of Wilkins' failure to employ the rule of strict construction of a penal statute. In my view, cherry

- picking the parts of a prior dec ision that the court wants to follow in the current case is anathema to the concept of being bound by that prior precedent.

Nevertheless, even if partial stare decisis is not an oxymoron, the doctrine is still subject to exceptions, such as where the cour t is clearly convinced a rule of law established in its earlier cases was originally erroneous. Rhoten v. Dickson , 290 Kan. 92, 112, 223 P.3d 786 (2010); see also Miller , 295 Kan. at 707

- 08 (Beier, J., dissenting) (governing rule of stare decisis and its r ecognized exceptions "excuses us from following precedent that is 'plainly and unmistakably the result of mistake and error'"). I submit that
Wilkins ' sufficiency of the evidence addendum to K.S.A. 21

- 3108(2)(a) was originally erroneous and the product of mistake and error in the application of well

- established rules of statutory construction. I would rectify that error now.