1 NOT DESIGNATED FOR PUBLICATION

No. 126,398

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee
,

v.

E THAN M AY , Appellant

.

MEMORANDUM OPINION

Appeal from Norton District Court; P RESTON A. P RATT , judge. Submitted without oral argument. Opinion filed June 14 , 2024. Affirmed.

James M. Latta , of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers , assistant solicitor general , and Kris W. Kobach , attorney general, for appellee.

B efore C OBLE , P.J., G REEN , J., and T IMOTHY G. L AHEY , S.J.

P ER C URIAM : Ethan May entered into a diversion agreement with the State after being charged with criminal damage to property. The diversion agreement contained evidentiary stipulations and provided for a bench trial on those stipulations in the event May violated the agreement

. After May violated his diversion agreement, he was convicted of criminal damage to property following a bench trial on the stipulated facts

. He was sentenced to eight months in prison. On appeal, May (1) challenges the sufficiency of the evidence supporting his conviction ; (2) asserts a violat ion of his right to a jury trial ; and (3) argues the district court erred in sentencing

. After considering the
entire record and the parties' arguments, we affirm May's conviction and sentence.2 F ACTUAL AND P ROCEDURAL H ISTORY

In March 2022, the State charged May with one count of criminal damage to property , alleg ing that he "did, feloniously and knowingly, by means other than fire or explosive, damage, deface, or substantially impair the use of property " owned by another
without consent in October 2021

. T he charging affidavit alleged that May and another

person had lived in a rental home without the owner's permission for about 10 months and that "all the doors, windows, blinds and flooring need to be replaced," which would

cost about $10,000

.

In November 2022, May entered into a diversion agreement with the State. In th at agreement, the State agreed to dismiss the complaint against May if he completed an 18

- month diversionary program. The agreement also stated that Ma y "understands that he has a right to trial by jury" but that "he is giving up those rights by entering into this diversion agreement." Additionally, May agreed that if he violated his diversion and the criminal proceedings on the complaint were resumed, he " understands and agrees

. . . that the criminal proceeding shall be conducted on the record of the complaint, charging affidavit, and any stipulation made by the defendant." These stipulations provided that May "stipulates he committed the offense(s)" of criminal damage to property , a nd he "further stipulates to a ll elements of each offense as described in the charging affidavit."

Along with the diversion agreement, May entered a nother stipulati on in which he acknowledged:

"I, Ethan May, understand and agree that if I violate the terms and conditions of this agreement, this case will proceed to trial based solely upon the charge and facts stipulated to and as shown in the complaint, including all evidence set forth in the ab ove agreement, if any, including the charging affidavit and police report, and I will not be3

entitled to present additional evidence concerning guilty or innocence at the trial. Therefore, in return for the acceptance into the diversion program, I stipulate and agree to the facts as stated as charged and the facts stipulated to and alleged to in t he complaint filed in this case, the supporting affidavit, and the facts as contained in the additional evidence attached to this agreement, if any, and agree to comply to the conditions as set
forth herein."

About two months later, in January 2023, t he State moved to revoke May's
diversion because he had violated the terms of his diversion by , among other things,

us ing methamphetamine and marijuana and failing to report to his court services officer. May admitted the violations
, and t he district court revoked his diversion and proceeded immediately to a bench trial based on the stipulated facts in the diversion agreemen t. T he

court then found May guilty of criminal damage to property "based upon the informatio n and the stipulations contained within the complaint and affidavit ."

At sentencing, the district court imposed an upward disposi tional departure because it believed May was not amenable to supervision based on his behavior during the diversion agreement, which included an arrest for recklessly driving a stolen vehicle
, and t he court sentenced May to eight months' imprisonment.

May appeals.

D ISCUSSION

May first challenges the sufficiency of the evidence supporting his conviction for criminal damage to property. Challenges to the sufficiency of the evidence in criminal

case s are reviewed in a light most favorable to the State to determine whether a rational
fact

- finder could have found the defendant guilty beyond a reasonable doubt

. State v. Aguirre , 313 Kan. 189, 209, 485 P.3d 576 (2021)

. When a criminal trial proceeds on stipulated facts , appellate courts conduct a de novo review for sufficiency of the4

evidence, again viewing the facts in a light most favorable to the State. State v.
Scheuerman , 314 Kan. 583, 587, 502 P.3d 502, cert. denied 143 S. Ct. 403 (2022). A verdict may be supported by circumstantial evidence if such evidence provides a basis for a reasonable inference by the fact

- finder regarding the fact in issue. State v. Logsdon , 304 Kan. 3, 25, 371 P.3d 836 (2016).

To convict May of criminal damage to property, the State had to prove that May knowingly damaged, destroyed, defaced, or substantially impaired the use of someone else's property without consent by means other than by fire or explosive. K.S.A. 21

- 5813(a)(1 ).

May argues that the stipulations he made when entering the diversion agreement
did not sufficiently support the element that he damaged the property by means " other than by fire or explosive. " And w hile t he State concedes that the complaint and charging affidavit do not specify the way in which May damage d property , it maintains that the stipulated facts in the complaint and charging affidavit are sufficient to provide circumstantial evidence to show that May damaged the property by means other than fire

or explosive

.

We agree with the State

. W hen May enter ed the diversion agreement, he stipulated

to " the facts shown in the complaint
, " which include the stipulation that he damaged the property by means "other than fire or explosive." Thus, h is stipulation, at a minimum, implicitly supports the district court ' s conclusion that May was guilty of the offense.

Th e argument in th is case is similar to the one made in State v. Kemp , No. 119,069, 2019 WL 985427 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1067 (2019). There, the defendant appealed her conviction for criminal damage to property, alleging that the stipulated facts were insufficient to prove that another person had an interest in the damaged property. But a panel of this court found the stipulated5

facts

— that the defendant was married to the victim and the two lived in the same apartment

— "constitute circumstantial evidence from which a fact

- finder could reasonably infer the type of interest that existed." 2019 WL 985427, at *6.

Moreover, in State v. West , No. 121,803, 2020 WL 6371381 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. 1046 (2021) , the defendant made a similar argument, challenging the sufficiency of the evidence of his convictions of criminal threat and domestic battery at a bench trial on stipulated facts

. There , t he defendant argued that there was insufficient evidence to convict him of criminal threat because the stipulations did not establish the required intent . And he argued there was insufficient
evidence to convict him of do mestic battery because the stipulations did not establish that
the victim was a member of the household . But a panel of this court disagreed with both arguments

. Instead, the court found that these stipulations provided sufficient evidence to support the convictions

. A s for the criminal threat conviction, the defendant stipulated to having the intent to place the defendant in fear ; as for the domestic battery conviction, the defendant stipulated that the victim was a member of the household as stated in the complaint. 2020 WL 6371381, at *3

- 4.

May makes the same argument as the defendants in Kemp and West , and , likewise,
we come to the same conclusion as in those cases

. May assumes that the State's evidence must specify exactly what type of means "other than by fire or explosive" that he used to commit the criminal damage to property. But both Kemp and West show that stipulated
facts

— although not explicitly establishing the disputed evidence

— constituted sufficient
circumstantial evidence from which a fact

- find er could make reasonable inferences in finding the defendant guilty of the charged offense

. Similarly, we find the stipulated facts
here sufficient to support May's conviction of criminal damage to property.

May goes on to assert that because a defendant cannot stipulate to a legal conclusion, this means he could not stipulate to committing this crime

— since that would6

itself be a legal conclusion. May is correct that a party cannot stipulate to a n ultimate legal conclusion

. See State v. Stoll , 312 Kan. 726, 735, 480 P.3d 158 (2021) . But his extrapolation of this general rule misses the mark. Not only did May stipulate that " he committed the offense(s) of [criminal damage to property]
, " he also stipulated to the underlying facts alleged in the complaint and charging affidavit . That is, he stipulated
that he lived in a rental home for about 10 months without the consent of the owner and
that he damaged, destroyed, defaced, or substantially impaired the interior of the property , which requir ed that all the doors, windows, blinds, and flooring be replaced

. Thus, contrary to May's assertion, he did not simply stipulate t hat he is guilty of a crime,
which would be a legal conclusion

. H e also stipulated to the underlying facts that made up the ele ments of th is offense

. We agree with the district court and find the evidentiary stipulations sufficient to find May guilty of criminal damage to property.

May's stipulation s did not constitute a guilty plea.

May next argue s that his stipulation was essentially a guilty plea
, thus requiring
the full protection given guilty pleas under K.S.A. 22

- 3210

. Under that statute, a district court may only accept a felony guilty plea if the defendant enters the plea in open court; the court informs the defendant of the specific sentence guidelines of the crime and the maximum penalty provided by law; the court determines that the defendant made the plea knowingly and voluntarily; and the court is satisfied there is a factual basis for the ple a. K.S.A. 22

- 3210(a). Thus, May argues, because the district court did not follow the safeguards laid out by K.S.A. 22

- 3210 , t he court erred by accepting his diversion agreement

.

But May himself notes that our Supreme Court rejected this argument nearly 50

years ago when it found that K.S.A. 22

- 3210 did not apply to a party's stipulations

. White
v. State , 222 Kan. 709, 712

- 13, 568 P.3d 112 (1977)

. Nevertheless, May argues White was wrongly decided and should be overruled for two reasons: (1) White "failed to realize7

that a stipulation to the crime itself is not a stipulation to the evidence but an admission of guilt," which should require the full protection of K.S.A. 22

- 3210 ; and (2) although a defendant retains various rights after a stipulation

— like the right to appeal

— White failed

to appreciate that there is often nothing left to appeal because there were no legal arguments made at the district court

.

Even if we were persuaded by May's argument, we are duty

- bound to follow Kansas Supreme Court precedent unless there is some indication that it is departing from its previous position. State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017 ). May
cite s no authority to show that the c ourt is making this move. Thus, we find May 's stipulations are not entitled to the full protections that a guilty plea receives under K.S.A.
22

- 3210.

In a similar vein, May argues that the district court failed to obtain a constitutionally adequate jury trial waiver when he entered the diversion agreement and

ma de the underlying stipulations

. But , generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review

. State v. Pearce , 314 Kan. 475, 484, 500 P.3d 528 (2021). May concedes that he did not preserve this argument for appeal , b ut he argues we should still rule on it because it involves a question of law arising out of admitted facts and consideration of this issue is necessary to prevent the d en ial of his fundamental right to a jury trial. See State v. Allen
, 314 Kan. 280, 283, 497 P.3d 566 (2021)

.

W e acknowledge that the right to a jury trial is a fundamental right and that appellate courts often choose to review these issues for the first time on appeal

. State v.
Redick , 307 Kan. 797, 802, 414 P.3d 1207 (2018). But there is no requirement that an appellate court do so ; a decision to review an unpreserved claim under an exception is ultimately a prudential one. State v. Rhoiney , 314 Kan. 497, 500, 501 P.3d 368 (2021).8

Whether a defendant waived the right to a jury trial is a question of fact that depends upon the particular context and circumstances in each case. State v. Lewis , 301 Kan. 349, 376, 344 P.3d 928 (2015). "Full consideration of the facts and circumstances surrounding a defendant's waiver

. . . is necessary in deciding whether a knowing and voluntary waiver occurred in any given case. " Put another way, appellate courts must
careful ly scrutin ize the facts and circumstances, " which give important context to the

process , " to determine whether a knowing and voluntary waiver occurred. State v.
Beaman , 295 Kan. 853, 861, 286 P.3d 876 (2012).

After careful review of the record, we find that it lack s the necessary factual development to allow a meaningful review of this question for the first time on appeal

. T he crux of this fact

- heavy inquiry focuses on whether the defendant made a knowing and voluntary waive r of his right to a jury trial

. There is evidence that t he district court had informed May of his right to a jury trial at his first appearance , and the diversion agreement explicitly stated that May understood that he had a right to a jury trial and that he was waiving those rights by entering into t he diversion agreement. May does not dispute or even acknowledge all of these facts on appeal . Instead, he simply argues that "at no point in the record does it show that the district court advised May of his right to a jury trial before waiving it."

A gain, our inquiry is ultimately focused on whether May made a knowing and voluntary jury trial waiver. But because May did not make th e argument that he now
makes before us at the district court, the court was unable to make any factual findings
related to whether May made a knowing or voluntary waiver

. M ay makes no argument
here that suggests that he was confused about this right or that he was coerced into entering into this diversion agreement. Thus, based on the undeveloped factual record before us, we find that it would not be prudent to consider May's argument for the first time on appeal

.9

The upward dispositional departure was not an Apprendi violation.

In his final claim on appeal, May argue s that the district court violated his right to a jury trial when it granted an upward dispositional departure from probation to a prison

term , relying on the United States Supreme Court case of Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 4348, 147 L. Ed. 2d 435 (2000)

.

May concedes that our Supreme Court has held that Apprendi does not apply to dispositional departures. State v. Carr , 274 Kan. 442, 452, 53 P.3d 843 (2002) ( "The distinction between probation and the imposition of a prison sentence renders the United States Supreme Courts' Apprendi decision inapplicable to a sentencing judge's decision to impose a disposi tional departure prison sentence rather than to grant probation." ). Nevertheless, May maintains that "it's time to rethink Carr's reasoning ."

But, a s we previously noted
, we are duty

- bound to follow Kansas Supreme Court precedent unless there is some indication that it is departing from its previous position. Rodriguez , 305 Kan. at 1144

. May does not provide any indication that the c ourt plans to depart from it s holding in Carr

. Thus
, we find the district court did not err in imposing an upward disposi tion al departure.

Affirmed.