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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 113,302

STATE OF KANSAS,

Appellee,

v.

DEAARION POTTS,

Appellant.

SYLLABUS BY THE COURT

1.

When the sufficiency of the evidence is challenged in a criminal case, we review 

the evidence in a light most favorable to the State to determine whether a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate 

court does not reweigh evidence, resolve conflicts in the evidence, or pass on the 

credibility of witnesses.

2.

There is nothing in the statutory language of K.S.A. 2012 Supp. 21-5807(a)(3) or 

K.S.A. 2012 Supp. 21-5801(a)(1) that restricts the scope of the burglary statute to 

situations in which the defendant steals or intends to steal something from the interior of 

a vehicle, as opposed to attempting to steal or actually stealing the vehicle itself.

3.

When a pretrial motion to suppress has been denied, the evidence must also be 

objected to at the time it is offered during the trial in order to preserve the issue for 

appeal.
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4.

The adult certification process under the Juvenile Justice Code is a jurisdictional 

determination, rather than a sentencing question. Therefore, the judicial factfinding 

necessary to certify a juvenile for adult prosecution does not run afoul of Apprendi v. 

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed 2d 435 (2000).

5.

A criminal sentence is effective when pronounced from the bench at the 

sentencing hearing; it does not derive its effectiveness from the journal entry. Therefore, 

a journal entry that imposes a sentence that varies from the sentence pronounced from the 

bench is erroneous and must be corrected to reflect the actual sentence imposed.

6.

A journal entry of judgment may be corrected "at any time" by a nunc pro tunc 

order. Nunc pro tunc orders are appropriate to correct clerical errors arising from 

oversight or omission.

7.

When the journal entry of judgment reflects the sentence that the district 

pronounced from the bench it cannot be corrected by a nunc pro tunc order.

Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed June 24, 

2016. Convictions affirmed, sentences vacated in part, and case remanded with directions.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for 

appellant. 
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Johnathan M. Grube, assistant district attorney, argued the cause, and Shawn M. Boyd, assistant 

district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the 

brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: On the night of October 20, 2012, 15-year-old Deaarion Potts drove 

three acquaintances around Kansas City, Kansas, in a car that Potts stole earlier that day. 

During the excursion, Potts drove up behind a car and his three passengers proceeded to 

fire weapons at the vehicle, killing Ramon Bradley, one of the car's four occupants. As a 

result, Potts was charged with felony murder, criminal discharge of a firearm at an 

occupied vehicle, and burglary. After the district court authorized Potts to stand trial as an 

adult, a jury found him guilty of all three crimes. The district court imposed a controlling 

sentence of life without the possibility of parole for 20 years. 

On appeal, Potts raises several arguments. First, he argues that because it was 

possible Bradley sustained his fatal gunshot wound during the initial moments of the 

shooting—when Potts claims he was not intending to aid his companions with the 

shooting—the State presented insufficient evidence to convict him of either felony 

murder or criminal discharge of a firearm. Potts also argues that in order for the State to 

have convicted him of burglary, it had to present evidence that he intended to steal 

something from within the car he broke into and stole. Because his conviction for 

burglary was based on his act of breaking into the car that he stole, he contends that his 

conviction must be reversed. Additionally, Potts argues that (1) his statements to police 

should have been suppressed because they were involuntary; (2) the district court's jury 

instruction on aiding and abetting was erroneous; (3) cumulative error deprived him of a 

fair trial; (4) the district court unconstitutionally enhanced his sentence by making factual 

findings that authorized the State to prosecute him as an adult; and (5) the district court 
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incorrectly noted within the journal entry of judgment that Potts was subject to lifetime 

postrelease supervision for all his convictions.

We reject his arguments and affirm his convictions and sentence. However, we

conclude that while the district court properly sentenced Potts to lifetime parole for 

felony murder, the journal entry of judgment indicates that lifetime postrelease 

supervision was also imposed as a result of his convictions for burglary and criminal 

discharge of a firearm when only a maximum of 36 months is allowed. The State 

concedes the issue. Accordingly, we vacate only that portion of his sentence and remand 

for resentencing. 

FACTS

During the late evening hours of October 20, 2012, Tracy Jordan and Eddie 

London drove Jordan's black Pontiac Grand Am to a community center located near 

Tenth Street and Washington Boulevard in Kansas City, Kansas, to pick up Jordan's 

brother, Charles Shelby, and his friend, Bradley, from a function that was ending. After 

picking them up, the group traveled eastbound on Washington Boulevard with the plan of 

going to the Power & Light District in downtown Kansas City, Missouri. Jordan drove;

London sat in the front passenger seat; and Shelby and Bradley rode in the backseat.

Once the two eastbound lanes of Washington Boulevard pass Fourth Street, the 

lanes slowly curve south and eventually split, with the left lane exiting onto eastbound 

I-70 (taking travelers into Missouri). The right lane proceeds south and then makes a 

sharp curve to the east. At this point, the lane is called Minnesota Avenue; it travels a 

short distance east until meeting with Third Street. Proceeding directly east through the 

intersection of Third and Minnesota would cause a person to travel the wrong way on 

Fairfax Trafficway. 
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As the group traveled around the first curve on Washington Boulevard, preparing 

to take the exit for eastbound I-70, someone started firing multiple gunshots at them. 

Moments later, the rear window shattered. Jordan noticed that the gunfire was coming 

from a red car directly behind them. Jordan continued driving in the right lane, eventually 

going around the sharp curve and coming to the intersection of Third and Minnesota. He 

drove through the intersection, going the wrong way up Fairfax Trafficway. At that point, 

the red car stopped its pursuit and turned left on Third Street.

Sometime during the shooting, but after the rear window had been shot out, 

Shelby heard Bradley say, "I'm hit."

Due to the damage the car sustained, Jordan's Grand Am eventually came to a stop 

on Fairfax Trafficway. Shelby estimated that more than a minute had passed from the 

time he heard the first shot to the time the car stopped on Fairfax; London estimated 

2 minutes had passed. Jordan got out of the car and waived down a truck driver, asking 

him to call the police. Police eventually responded to the scene and discovered that 

Bradley had died as a result of a single gunshot wound.

Police did not find any weapons or bullet casings inside the Grand Am. Police 

noted that the car had sustained several bullet holes, indicating that it was fired upon from 

behind. 

During the investigation of the shooting, police scavenged the area on eastbound 

Washington Boulevard where the initial shots occurred and discovered bullet casings 

beginning just after the exit sign for Minnesota Avenue/Fairfax District. The sign noted 

that the exit—where traffic lines begin denoting separation of the two eastbound lanes—

was 1/8-mile away. In this general area, police discovered a total of 31 shell casings—
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nineteen 7.62x39 mm casings and twelve 9 mm casings. Near the intersection of Third 

and Minnesota—where the red car ended its pursuit—police found 20 shell casings—

fourteen 7.62x39 mm casings and six 9 mm casings.

Police eventually found a red Dodge Intrepid parked in the middle of an alley near 

25th and Garfield. The interior of the car was partially burnt. Someone had attempted to 

set the car on fire by igniting a gas can and placing it behind the front passenger seat. 

Police noted that the outer plate of the ignition switch was missing, indicating that 

someone had used a screwdriver to start the car. There were no weapons found inside,

and there was no evidence that the car had sustained any gunshot damage. But police did 

find two 9 mm shell casings inside the car.

In all, police recovered 53 shell casings—thirty-three 7.62x39 mm casings and 

twenty 9 mm casings. Law enforcement determined that all 33 of the 7.62x39 mm 

casings were fired from the same gun. Of the twenty 9 mm casings recovered, 13 were 

fired from one gun, and seven were fired from another. In other words, three firearms 

were involved in the shooting—one firing 7.62x39 mm bullets and two firing 9 mm 

bullets. 

A forensic scientist from the KBI testified that the most common firearm designed 

for 7.26x39 mm ammunition is an AK-47 rifle. In comparison, 9 mm ammunition is 

typically used in handguns. The scientist also estimated that an AK-47 without a shoulder 

stock is at least 26 inches long and that a shoulder stock generally adds another 8 to 10 

inches in length. The scientist said that a 9 mm handgun is typically around 10 inches in 

length.

During Bradley's autopsy, a forensic pathologist recovered the fatal bullet. The 

forensic scientist examined the bullet. Though he could not determine its exact caliber, 
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the scientist stated that based on its characteristics, the bullet was "consistent with a rifle 

caliber rather than a handgun caliber."

A couple of days after the shooting, police learned that 16-year-old D'Andre Hill 

may have been involved in the shooting. On October 24, 2012, Hill, accompanied by his 

mother, spoke with police about the shooting. Hill told police that he and Deandre Harris 

(age 17) were at the Chelsea Apartment complex off Seventh Street when Potts (age 15) 

and Bobby Hale, Jr., (age 18 or 19) picked them up in a red car. As Potts drove, Hale sat 

in the front passenger seat, and Hill and Harris sat in the back seat.

According to Hill, as they traveled eastbound on Washington Boulevard, he heard 

Hale say, "There they go." Then, Hill heard a "boom" and realized that Hale was firing a 

rifle at a black car in front of them. Hill and Harris, who were armed with handguns, 

joined in and started firing their weapons at the car while Potts drove. As Potts followed 

the car down the Third Street exit, he drove into a curb or guardrail, but kept following 

the black car. Hill said that Potts stopped following the car once it drove through the 

intersection at Third and Minnesota and proceeded the wrong way on Fairfax Trafficway. 

Potts then turned left onto Third Street and drove away.

Hill said that no one discussed the shooting prior to it occurring.

On October 26, Potts, accompanied by his grandfather, came to the police station. 

After being advised of and waiving his Miranda rights, Potts spoke with two detectives. 

He told them that on the day of the shooting, he was walking by himself when he got 

tired and decided to steal a red Dodge Intrepid. He drove the car to an apartment complex 

off Seventh Street where he picked up Hale, Hill, and Harris. Hale sat in the front seat, 

Hill and Harris sat in the back seat. Potts told detectives that he was driving east on 

Washington Boulevard when he heard a "boom." He looked over and saw that Hale had 
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fired, in Potts' words, a "big gun" out the front passenger-side window at a car traveling 

in front of them. As Hale fired his weapon at the car, Potts said that he sped up and 

followed the car until it went down the wrong way of a one-way street. Afterwards, Potts 

drove his companions back to the apartment complex and dropped them off. He then 

parked the car and walked to his grandmother's house.

Potts told detectives that he did not realize anyone in the car was armed prior to 

the shooting.

After charging Potts in juvenile court with felony murder and criminal discharge 

of a firearm at an occupied vehicle, the State filed a motion seeking authorization to 

prosecute Potts as an adult pursuant to K.S.A. 2012 Supp. 38-2347. After conducting an 

evidentiary hearing, the district court granted the State's motion. The State filed an 

amended information charging Potts with the additional crimes of vehicular burglary and 

theft.

At Potts' jury trial, Hill testified for the State. Other than a few additional details, 

Hill's account of the shooting was similar to the account he gave to detectives. Hill again 

said that he and Harris were picked up at the apartment complex by Potts who was 

driving a red Dodge Intrepid. Hale sat in the front seat. Hill said that they left the 

apartment complex to buy cigars.

Hill indicated that somewhere around the area of Fifth and Washington, he heard 

Hale say, "There they go." Then he heard gunshots, looked up, and saw Hale firing an 

assault rifle out the front passenger-side window at a car. Hill said that he thought they 

were getting shot at, so he began shooting at the car with his handgun. Hill said that when 

they started shooting at the car, it was a couple of car lengths away.
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Hill said that he and Harris were both armed with 9 mm handguns while Hale was 

armed with an assault rifle. Hill described Hale's gun as being long, estimating that it was 

2 feet in length. Hill claimed that he did not know Harris and Hale were armed until the 

shooting occurred. Hill said that prior to the shooting, they had not discussed looking for 

a particular vehicle. 

Hill said that as they were going around a curve, they hit a curb. Initially, Hill said 

that everyone stopped firing their weapons at this point. But later on cross-examination, 

Hill said that the shooting stopped once Potts turned left onto a street, presumably Third 

Street. Hill said that after the shooting, Potts drove them back to the Chelsea apartments 

where everyone got out of the car and left. Hill and Harris returned later and drove the car 

to an alley, set fire to it, and left. Hill said that after throwing his gun into a sewer, he 

returned to the apartment complex.

At the end of the State's case-in-chief, the district court granted Potts' motion for a 

directed verdict on the theft count due to the State failing to put on any evidence to 

establish the car's owner.

Potts presented the testimony of Dwight Alexander, an attorney who, at the 

request of defense counsel, timed how long it took to drive the portion of Washington 

Boulevard where the shooting took place. Alexander testified that the speed limit in that 

area is 30 miles per hour. Alexander said that going the speed limit, it took him 16.47 

seconds to travel from the 1/8-mile exit sign for Minnesota Avenue/Fairfax District to the 

start of the exit for Minnesota Avenue/Fairfax District. From the exit sign to the stop sign 

at the intersection of Third Street and Minnesota Avenue, it took 39.27 seconds to travel 

that distance going the speed limit. Alexander noted that he had to slow down in order to 

negotiate the shape curve leading onto Minnesota Avenue.
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The jury found Potts guilty of felony murder, criminal discharge of a firearm at an 

occupied vehicle, and burglary. More facts will be stated as they become pertinent to 

issues discussed below. 

FELONY MURDER AND CRIMINAL DISCHARGE OF A FIREARM

Potts argues that his convictions for felony murder and criminal discharge of a 

firearm at an occupied vehicle should be reversed because, according to him, the 

evidence was inconclusive as to whether he intended to aid his companions (particularly 

Hale) when they initially fired their weapons at the Grand Am. Potts contends that Hale, 

his front-seat passenger, started shooting at the Grand Am without any warning and that 

the bullet which killed Bradley was fired from Hale's gun. Potts claims that because it is 

possible Hale fired the fatal shot before he, Potts, acted in a manner which aided Hale and 

the others with the shooting (i.e., speeding up in order to stay close to the Grand Am), the 

evidence was insufficient to convict him of either criminal discharge of a firearm or 

felony murder.

When the sufficiency of the evidence is challenged in a criminal case, we review

the evidence in a light most favorable to the State to determine whether a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt. State v. 

Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). An appellate court does not reweigh 

evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. 

McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011). This court has also recognized 

that there is no distinction between direct and circumstantial evidence in terms of 

probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). "A conviction of 

even the gravest offense can be based entirely on circumstantial evidence and the 

inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the 

right to make the inference." McCaslin, 291 Kan. 697, Syl. ¶ 9.
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Felony murder is the killing of a human being committed "in the commission of, 

attempt to commit, or flight from an inherently dangerous felony." K.S.A. 2012 Supp. 

21-5402(a)(2). Criminal discharge of a firearm at an occupied vehicle is considered an 

inherently dangerous felony for purposes of applying the felony-murder rule. See K.S.A. 

2012 Supp. 21-5402(c)(1)(O). 

The district court instructed the jury that in order to convict Potts of criminal 

discharge of a firearm at an occupied vehicle, it had to find that Potts or another for 

whose conduct Potts was criminally responsible: (1) discharged a firearm at the Grand 

Am; (2) did so recklessly and without authority; (3) the Grand Am was occupied by a 

person, regardless of whether this was known by Potts or his companions at the time of 

the shooting; and (4) the shooting caused great bodily harm to Bradley. See K.S.A. 2012 

Supp. 21-6308(a)(1)(B) and (b)(1)(B). In order to hold Potts criminally responsible for 

the conduct of his companions, the jury was instructed:

"A person is criminally responsible for a crime if the person, either before or 

during its commission, and with the mental culpability required to commit the crime 

intentionally aids another to commit the crime. All participants in a crime are equally 

responsible without regard to the extent of their participation. Mere association with the 

principles who actually commit the crime or mere presence in the vicinity of the crime is 

insufficient to establish guilt as an aider and abettor."

We have repeatedly stated that if someone dies during the course of an inherently 

dangerous felony, such as criminal discharge of firearm at an occupied vehicle, "all the 

participants . . . [are] equally guilty of the felony murder, regardless of who fired the fatal 

shot." State v. Thomas, 239 Kan. 457, 462, 720 P.2d 1059 (1986). All participants in a 

felony murder are principals. See State v. Littlejohn, 260 Kan. 821, 822, 925 P.2d 839 

(1996); Thomas, 239 Kan. at 462.
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Potts' sufficiency argument fails to account for direct and circumstantial evidence 

that the jury could have relied on to conclude that he intended to aid his companions with 

the shooting at its very beginning. The jury was presented with evidence establishing that 

Potts stole a car prior to the shooting and that Hale—armed with an assault rifle that was 

at least 2 feet in length—got into the car and sat in the front passenger seat as Potts drove. 

After picking up Hill and Harris at the apartment complex, Potts drove the car east on 

Washington Boulevard. Hill's testimony indicated that somewhere around Fifth Street 

and Washington Boulevard, Hale said, "There they go," and then he started firing his 

weapon at the Grand Am. Hill and Harris soon joined in by firing their handguns at the 

car. Police discovered 31 shell casings (nineteen 7.62x39 mm casings and twelve 9 mm 

casings) on eastbound Washington Street beginning just past the 1/8-mile exit sign for 

Minnesota Avenue/Fairfax District, which is past the intersection of Fourth Street and 

Washington Boulevard.

Based on this evidence, the jury could have inferred that Potts stole the car for the 

purpose of acquiring transportation in order to commit the shooting. The fact that Hale 

got into the car and sat next to Potts while armed with an assault rifle (a weapon not 

easily concealed) supports this inference. Hale's statement of "There they go" indicates a 

prearranged plan to commit the shooting because the statement implies Potts would know 

that Hale was referring to the occupants of the Grand Am. Finally, instead of simply 

stopping the car or pulling over, Potts reacted to the initial shots by speeding up and 

following the Grand Am for a considerable distance, which included driving past an exit 

for I-70 and pursuing the car around a sharp curve leading onto Minnesota Avenue, 

thereby allowing his companions (based on the evidence collected near the intersection of 

Third and Minnesota) to fire their weapons 20 more times at the car. Accordingly, the 

State presented sufficient evidence to show that Potts, before and during the incident, 

intended to aid his companions with firing their weapons at the Grand Am. Because 

Ramon Bradley died as a result of the shooting, the evidence was also sufficient for the 
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jury to find Potts guilty of felony murder and criminal discharge of a firearm at an 

occupied vehicle.

VEHICULAR BURGLARY 

Potts was convicted of burglary in violation of K.S.A. 2012 Supp. 21-5807(a)(3) 

based on his act of illegally entering and stealing the Dodge Intrepid that was used in the 

shooting. Potts contends that his conviction must be reversed because, according to him, 

an unauthorized entry into a vehicle with the intent to steal that very same vehicle is not 

criminalized by the burglary statute. Rather, the statute criminalizes the unauthorized 

entry into a vehicle with the intent to steal property located within the vehicle. 

Accordingly, Potts argues that because there was no evidence presented at trial that he 

entered the Dodge Intrepid with the intent to steal anything from within the vehicle, his 

conviction for vehicular burglary must be reversed. 

Again, when the sufficiency of the evidence is challenged in a criminal case, we 

review the evidence in a light most favorable to the State to determine whether a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt. Frye, 294 

Kan. at 374-75. An appellate court does not reweigh evidence, resolve conflicts in the 

evidence, or pass on the credibility of witnesses. McCaslin, 291 Kan. 697, Syl. ¶ 8. 

To the extent that Potts' argument requires interpretation of the burglary statute, this court 

exercises unlimited review. See State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). 

K.S.A. 2012 Supp. 21-5807(a)(3) states in pertinent part that burglary is entering 

into vehicle without authority with intent to commit a theft "therein." Theft is defined in 

pertinent part as obtaining or exerting unauthorized control over property with the intent 

to permanently deprive the owner of the use or benefit of the property. K.S.A. 2012 Supp. 

21-5801(a)(1). As the language of the burglary statute indicates, proof that the defendant 

completed a theft is not required for a conviction. Instead, the evidence must show that 
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the defendant illegally entered the vehicle with the intent to commit a theft therein. See 

State v. Rush, 18 Kan. App. 2d 694, 701, 859 P.2d 387 (1993), rev'd on other grounds

255 Kan. 672, 877 P.2d 386 (1994). 

Potts argues that the legislature's use of the word "therein" (a word meaning "in or 

into that place or thing," see the Merriam Webster Dictionary [Online ed. 2016]) shows 

that the legislature intended to proscribe the act of entering a vehicle without authority for 

the purpose of stealing something from within the vehicle rather than entering the vehicle 

with the intent to steal the vehicle. 

As Potts acknowledges, the Court of Appeals rejected this argument in State v. 

Jones, 29 Kan. App. 2d 936, 34 P.3d 82 (2001), rev. denied 273 Kan. 1038 (2002), but he 

argues that the court's reasoning for doing so ignored the language of K.S.A. 21-3715(c), 

the predecessor to K.S.A. 2012 Supp. 21-5807(a)(3). K.S.A. 21-3715(c) defined burglary 

as "knowingly and without authority entering into or remaining within any . . . motor 

vehicle . . . with intent to commit a felony, theft or sexual battery therein." Like Potts, the 

defendant in Jones argued that by including "therein" within the statutory definition of 

vehicular burglary, the legislature distinguished an intent to commit a theft within the 

vehicle (i.e., stealing an item located inside the vehicle) from the intent to commit a theft 

of the vehicle. Accordingly, the defendant argued that he could not be convicted of 

burglary based on his act of entering a vehicle with the intent to steal it. 

The Jones court construed the defendant's argument as essentially contending that 

"because the entry of the vehicle was a necessary part of the theft of the vehicle," the two 

crimes merged together, preventing his prosecution for both crimes. 29 Kan. App. 2d at 

937. Rejecting this argument, the court reasoned that burglary and theft are separate 

crimes with distinct elements. "[T]he fact that one necessarily precedes the other does not 

demonstrate a merger of the offenses any more than a burglary of a house, although 
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necessary to the completion of some offense inside the house, merges with that offense 

upon its completion." Jones, 29 Kan. App. 2d at 939. 

Admittedly, the Jones court failed to precisely address the defendant's argument 

regarding the impact of the word "therein" upon the mens rea element of vehicular 

burglary. But the court did touch upon the fact that burglary and theft are separate crimes 

and that if a person unlawfully enters a vehicle with the intent to commit a theft, he or she 

is guilty of burglary, regardless of the property the person intended to steal after entering 

the vehicle. There is nothing in the statutory language of K.S.A. 2012 Supp. 

21-5807(a)(3) or K.S.A. 2012 Supp. 21-5801(a)(1) that restricts the scope of the burglary 

statute to situations in which the defendant steals or intends to steal something from the 

interior of a vehicle, as opposed to attempting to steal or actually stealing the vehicle 

itself. Simply stated, a person who illegally enters a car for the purpose of completing a 

theft—be it hotwiring a car or removing a car stereo—necessarily intends to commit a 

theft inside the vehicle (i.e., therein) and may be properly convicted of vehicular burglary 

under K.S.A. 2012 Supp. 21-5807(a)(3). 

Courts from other jurisdictions with similar vehicular burglary statutes have 

reached the same conclusion. In Illinois, where vehicular burglary is defined as a 

knowing entry without authority into "a motor vehicle . . . or any part thereof, with intent 

to commit therein a felony or theft," see 720 Ill. Comp. Stat. Ann. 5/19-1(a) (2014), the 

courts have rejected the same argument Potts makes in this case—that entry into a vehicle 

with the intent to steal the vehicle itself (as opposed to something "therein") does not 

constitute a burglary. See People v. Buckner, 203 Ill. App. 3d 525, 535, 561 N.E.2d 335 

(1990) (noting that if the court adopted defendant's construction of vehicular burglary 

statute, "a person who entered a car to steal something from within would be punished for 

burglary but a person breaking in to steal the car itself would be guilty of theft only"); 

People v. Mullinex, 125 Ill. App. 3d 87, 89-91, 465 N.E.2d 135 (1984); People v. 
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Sansone, 94 Ill. App. 3d 271, 273-74, 418 N.E.2d 862 (1981). In Florida, where vehicular 

burglary is defined as an entry into "a structure or a conveyance with the intent to commit 

an offense therein," see Fla. Stat. Ann. § 810.02 (2007), the courts have also rejected the 

argument that the statute ought not to apply when the only intent is to steal the vehicle 

itself. See, e.g., State v. Stephens, 601 So.2d 1195, 1196-97 (Fla. 1992) (The court noted

that "therein" is synonymous with "in that place" and that use of the word "therein" 

within vehicular burglary statute "places no requirement that the crime must be one that 

can be completed solely within the fixed limits of that particular place, only that the 

crime is intended to be committed there. This obviously can include an intent to commit 

car theft, because such a crime can be committed 'in that place.'"). Accord State v. Griffin, 

116 N.M. 689, 694, 866 P.2d 1156 (1993) (construing New Mexico's vehicular burglary 

statute and concluding that "[b]reaking into a car with the intent to steal the car qualifies 

as an intent to commit a theft 'therein'").

Potts does not dispute that the evidence presented at trial established he did not 

have permission to take the Dodge Intrepid. He simply argues that his act of illegally 

entering the car with the intent to steal the car is insufficient to sustain his conviction for 

vehicular burglary. Based on our construction of K.S.A. 2012 Supp. 21-5807(a)(3), we 

reject Potts' argument and affirm his conviction for vehicular burglary. 

MOTION TO SUPPRESS

Next, Potts argues that the district court erred in failing to suppress his statements 

to police because his statements were involuntarily made. Potts acknowledges that he 

failed to object at trial when Detective Angela Garrison testified about Potts' statements 

to police. But he argues that notwithstanding the lack of a contemporaneous objection, 

this court should address the merits of this evidentiary issue in order to serve the ends of 

justice or to prevent the denial of fundamental rights. He also argues that judicial 

economy would be promoted by addressing the issue now rather than forcing him to file a 
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K.S.A. 60-1507 motion based on ineffective assistance of trial counsel for failing to 

object at trial.

We reject Potts' invitation to address this issue. In State v. Houston, 289 Kan. 252, 

270, 213 P.3d 728 (2009), we stated:

"[W]e hold that when a pretrial motion to suppress has been denied, the evidence must 

also be objected to at the time it is offered during the trial in order to preserve the issue 

for appeal. This holding is also consistent with the language in K.S.A. 60-404—objection 

to the evidence must be 'timely interposed'—and consistent with this court's longstanding 

characterization of the statutory language as requiring a 'contemporaneous' objection. 

Among other advantages, this holding allows a court to rule on the evidence before trial, 

but after hearing how the evidence unfolds during trial, allows the court to be prepared—

after timely trial objection—to reconsider its original ruling."

Further, it should be noted that Potts' statements to police played a central role in 

his defense against the charges of felony murder and criminal discharge of a firearm at an 

occupied vehicle. Defense counsel performed an extensive cross-examination of 

Detective Garrison regarding Potts' statements to police. During this cross-examination, 

defense counsel was able to highlight for the jury Potts' statements indicating that he was 

not aware his companions were armed prior to the shooting; that the shooting was 

spontaneous, brief, and surprised him, and that as soon as he could, he stopped following 

the Grand Am by turning onto Third Street. Defense counsel used these statements in her 

closing argument to contend that Potts should not be found guilty of either criminal 

discharge of a firearm at an occupied vehicle or felony murder because he never intended 

to aid his friends with shooting at the Grand Am. Accordingly, defense counsel's failure 

to raise a contemporaneous objection during Garrison's testimony concerning Potts' 

statements may have been a strategic decision that will prove to be unchallengeable in a 

later K.S.A. 60-1507 motion raising ineffective assistance of counsel. See Rowland v. 
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State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009) (If counsel has made a strategic 

decision after making a thorough investigation of the law and the facts relevant to the 

realistically available options, then counsel's decision is virtually unchallengeable.). 

Consequently, Potts' judicial economy argument for why this court should address his 

unpreserved evidentiary issue on direct appeal is not persuasive.

We decline to address Potts' argument regarding the admission of his statements 

into evidence because he failed to preserve the issue for appellate review.

JURY INSTRUCTION ON AIDING AND ABETTING

Next, Potts argues that the district court's jury instruction on aiding and abetting 

was erroneous because it failed to clearly convey that Potts, in order to be found guilty of 

criminal discharge of a firearm at an occupied vehicle, needed to act intentionally in 

aiding Hale with shooting at the Grand Am. To remedy this, Potts contends that the 

statutory definition of intentional conduct should have accompanied the instruction on 

aiding and abetting culpability. See K.S.A. 2012 Supp. 21-5202(h) ("A person acts 

'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a 

result of such person's conduct when it is such person's conscious objective or desire to 

engage in the conduct or cause the result.").

Potts concedes that he did not request the instruction or object to the district court's 

jury instruction on aiding and abetting. Accordingly, review of this issue is controlled by 

K.S.A. 22-3414(3) and the stairstep analytical process set out in State v. Herbel, 296 Kan. 

1101, Syl. ¶¶ 7-8, 299 P.3d 292 (2013), and State v. Williams, 295 Kan. 506, 511, 286 

P.3d 195 (2012). As Williams articulated, K.S.A. 22-3413(3) creates a procedural hurdle 

when a party fails to object because the statute establishes a preservation rule for 

instruction claims on appeal. It provides, in part, that no party may assign as error a 
19

district court's giving or failure to give a particular jury instruction, including a lesser 

included crime instruction, unless the giving or failure to give the instruction is clearly 

erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection 

in the district court. Williams, 295 Kan. at 512-13.

To establish that the giving or failure to give an instruction was clearly erroneous, 

the reviewing court must determine whether there was any error at all. This requires 

demonstrating that giving the proposed instruction would have been both legally and 

factually appropriate, employing an unlimited review of the entire record. Williams, 295 

Kan. at 515-16. And if error is found on that basis, then the court moves to a reversibility 

inquiry in which it assesses whether it is firmly convinced the jury would have reached a 

different verdict had the instruction been given. The defendant maintains the burden to 

establish the degree of prejudice necessary for reversal. 295 Kan. at 516.

The district court gave the following instruction (based on PIK Crim. 4th 52.140) 

regarding aiding and abetting culpability:

"A person is criminally responsible for a crime if the person, either before or 

during its commission, and with the mental culpability required to commit the crime 

intentionally aids another to commit the crime. All participants in a crime are equally 

responsible without regard to the extent of their participation. Mere association with the 

principles who actually commit the crime or mere presence in the vicinity of the crime is 

insufficient to establish guilt as an aider and abettor."

The language of the instruction conforms with K.S.A. 2012 Supp. 21-5210(a) 

("A person is criminally responsible for a crime committed by another if such person, 

acting with the mental culpability required for the commission thereof, advises, hires, 

counsels or procures the other to commit the crime or intentionally aids the other in 

committing the conduct constituting the crime."). 
20

In State v. Llamas, 298 Kan. 246, 311 P.3d 399 (2013), this court reviewed an 

aiding and abetting instruction based on PIK Crim. 3d 54.05—the predecessor to PIK 

Crim. 4th 52.140. The instruction stated: 

"'A person who, either before or during its commission, intentionally aids another 

to commit a crime with the intent to promote or assist in its commission is criminally 

responsible for the crime committed regardless of the extent of the Defendant's 

participation, if any, in the actual commission of the crime.'" 298 Kan. at 258. 

The district court denied the defendant's request in Llamas to add the following 

language to the instruction:

"'[M]ere association with the principals who actually commit the crime or mere presence 

in the vicinity of the crime is insufficient to establish guilt as an aider or abetter. To be 

guilty of aiding and abetting in the commission of the crime the defendant must willfully 

associate himself with the unlawful venture and willfully participate in it as he would 

something he wishes to bring about.'" 298 Kan. at 258. 

On appeal, the defendant argued that the district court erred in refusing to give the 

additional language because the jury was left without direction regarding his defense 

(similar to Potts' defense) that he was merely present at the crime scene and did not assist 

an acquaintance with firing a gun at an occupied vehicle that resulted in a death. This 

court acknowledged that though the "mere association or presence" language was a 

correct statement of law, several of its prior decisions had concluded that the language of 

PIK Crim. 3d 54.05 "'clearly informs the jury that intentional acts by a defendant are 

necessary to sustain a conviction for aiding and abetting.'" 298 Kan. at 260. See, e.g., 

State v. Edwards, 291 Kan. 532, 552, 243 P.3d 683 (2010) (["This court has repeatedly 

held that juries are presumed to intuit from the word 'intentionally' in the patterned 
21

instruction that proof of mere association or presence would be insufficient to convict."). 

Consequently, the court concluded that though "[t]he better practice would be to include 

the mere association or presence language when a defense is based on the theory that a 

defendant was merely present and did not actively aid and abet a crime," the district court 

did not err by failing to do so. Llamas, 298 Kan. 261-62; see also State v. Littlejohn, 298 

Kan. 632, 650-51, 316 P.3d 136 (2014) (reaching same conclusion). 

The instruction at issue in this case gave a more extensive description of criminal 

liability based on aiding and abetting than the instruction at issue in Llamas. The first two 

sentences of the aiding and abetting instruction given in this case are substantially similar 

to the instruction at issue in Llamas—an instruction that the court determined "'clearly 

informs the jury that intentional acts by a defendant are necessary to sustain a conviction 

for aiding and abetting.'" 298 Kan. at 260. The requirement that the defendant act 

intentionally in order to find him or her criminally responsible for a crime committed by 

another is reinforced by the last sentence of the instruction at issue here: "Mere 

association with the principals who actually commit the crime or mere presence in the 

vicinity of the crime is insufficient to establish guilt as an aider or abettor."

The instruction as a whole clearly conveyed to the jury that a defendant, in order 

to be found guilty for a crime committed by another, must have intentionally aided in the 

commission of the crime. We conclude that it was not legally necessary for the district 

court to add the definition of intentional conduct sua sponte to the instruction it gave the 

jury on aiding and abetting liability. Based on the caselaw cited above, doing so would 

have been redundant.

CUMULATIVE ERROR

Potts next argues that cumulative error cost him a fair trial. Cumulative error, 

considered collectively, may be so great as to require reversal of a defendant's conviction. 
22

The test is whether the totality of the circumstances substantially prejudiced the

defendant and denied him or her a fair trial. No prejudicial error may be found under the 

cumulative error doctrine if the evidence against the defendant is overwhelming. State v. 

Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007). Moreover, this doctrine does not 

apply if no error or only one error supports reversal. See State v. Dixon, 289 Kan. 46, 71, 

209 P.3d 675 (2009). 

Based on the above analysis, none of the trial issues raised on appeal constitute 

error. Therefore, the court should not apply the cumulative error doctrine here

PROSECUTION AS AN ADULT

Potts also argues that when the district court made factual findings supporting its 

decision to authorize adult prosecution, it increased his potential punishment in violation 

of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 

Potts acknowledges that he failed to raise this issue before the district court, but he notes 

that this court has addressed Apprendi issues for the first time on appeal. See e.g., State v. 

Gould, 271 Kan. 394, 404-05, 23 P.3d 801 (2001); cf. State v. Perez, 292 Kan. 785, 261 

P.3d 532 (2012) (refusing to address adult-certification Apprendi argument because 

defendant failed to comply with Supreme Court Rule 6.02 [2015 Kan. Ct. R. Annot. 41] 

by not explaining why issue should be considered for the first time on appeal). Whether 

the district court violated Apprendi by making factual findings authorizing Potts to stand 

trial as an adult raises a question of law subject to unlimited review. See State v. Tyler, 

286 Kan. 1087, 191 P.3d 306 (2008). 

Here, the district court, not a jury, found that the State could prosecute Potts as an 

adult under K.S.A. 2012 Supp. 38-2347. Potts contends that if he had been prosecuted as 

a juvenile, he would have faced approximately 8 years in a juvenile correctional facility, 

compared to the controlling hard-20 life sentence he received as the result of being tried 
23

as an adult. Because the district court's approval of adult prosecution increased the 

maximum punishment Potts faced, and the determination was not tried before a jury and 

proven beyond a reasonable doubt, Potts claims his rights under the Sixth and Fourteenth 

Amendments to the United States Constitution—as interpreted by Apprendi and its 

progeny—were violated.

Potts concedes that this court has rejected this argument in several cases. See 

Tyler, 286 Kan. at 1096; State v. Mays, 277 Kan. 359, 367-68, 85 P.3d 1208 (2004); State 

v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003); State v. Jones, 273 Kan. 756, 47 P.3d 

783, cert. denied 537 U.S. 980 (2002). In Jones, we held that while Apprendi applies to 

the sentencing phase of a criminal proceeding after guilt has been determined, the case 

does not apply to an initial adult certification hearing because such a hearing addresses a 

"jurisdictional matter" meant to determine which court (juvenile or adult) will resolve the 

case. Thus Apprendi's requirement of a jury determination is not required for a juvenile to 

be tried as an adult. 273 Kan. at 774-78.

This court affirmed Jones' reasoning in Tyler. Tyler argued that his Apprendi

rights were violated when the district court made the factual findings necessary to allow 

his prosecution as an adult rather than as a juvenile. The Tyler court rejected this 

argument, reasoning that Apprendi forbids only the imposition of a sentence that exceeds 

the statutory maximum permitted by the facts required by the jury's finding of guilt. In 

other words, Apprendi still applies after the certification procedure sends a juvenile to

adult court. Tyler, 286 Kan. at 1095-96.

Notably, "[t]he vast majority of courts have held that a judge's decision whether a 

juvenile should be prosecuted as an adult is a pre-adjudicatory question of jurisdiction 

and therefore does not implicate the Apprendi case line." Jenny E. Carroll, Rethinking the 

Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult 
24

Punishment, and Adult Process, 61 Hastings L.J. 175, 201 (2009). See, e.g., United States 

v. Miguel, 338 F.3d 995, 1004 (9th Cir. 2003) ("Apprendi does not require that a jury find 

the facts that allow the transfer to district court. The transfer proceeding establishes the 

district court's jurisdiction over a defendant."); United States v. Juvenile, 228 F.3d 987, 

990 (9th Cir. 2000) (holding that the transfer of a juvenile to an adult court "merely 

establishes a 'basis for district court jurisdiction'"); State v. Kalmakoff, 122 P.3d 224, 227 

n.29 (Alaska App. 2005) (finding that the weight of authority indicates that transfer 

Fproceedings are mere determinations of the court's jurisdiction and therefore Apprendi

protections do not apply); State v. Rodriguez, 205 Ariz. 392, 401 71 P.3d 919, 928 (Ariz. 

App. 2003) (holding that the state juvenile-transfer statute in question is not a sentenceenhancement scheme because "it does not subject [a] juvenile to enhanced punishment, it 

subjects [a] juvenile to the adult criminal justice system"); People v. Beltran, 327 Ill. 

App. 3d 685, 690-91, 765 N.E.2d 1071, 1076 (2002) (holding that transfer establishes 

jurisdiction and therefore is "dispositional, not adjudicatory"); Caldwell v. Com., 133 

S.W.3d 445, 452-53 (Ky. 2004) (adopting the argument that juvenile transfer is merely 

jurisdictional); State v. Lopez, 196 S.W.3d 872, 875-76 (Tex. App. 2006) (holding that a 

decision allowing "prosecution of a juvenile as an adult" only "involves the determination 

of which system will be appropriate for a juvenile offender"). 

Potts claims that Tyler was wrongly decided because the court focused on the 

jurisdictional nature of authorizing the State to prosecute a juvenile as an adult rather than 

the effect adult certification has on a juvenile, i.e., subjecting him or her to the possibility 

of increased punishment. However, Potts' argument fails to acknowledge that the adult 

certification procedure takes place before a juvenile has been found guilty of committing 

any crime. In Apprendi, the Supreme Court held: "Other than the fact of a prior 

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 

at 490. But the Court cautioned that "the relevant inquiry is one not of form, but of 
25

effect—does the required finding expose the defendant to a greater punishment than that 

authorized by the jury's guilty verdict?" (Emphasis added.) 530 U.S. at 494. Since 

Apprendi, the Court has never indicated or hinted that Apprendi would apply to a factual 

determination made at a pretrial proceeding. Cf. Hurst v. Florida, 577 U.S. __, 136 S. Ct. 

616, 621-22, 193 L. Ed. 2d 504 (2016) (concluding that Florida's capital sentencing 

scheme violates the Sixth Amendment because judicial fact finding exposes defendant to 

greater punishment [death] than the punishment authorized by jury's guilty verdict [life 

sentence]); Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 

314 (2013) (concluding that defendant's Sixth Amendment rights were violated when a 

judge made factual finding that increased defendant's mandatory minimum sentence 

resulting from jury's guilty verdict).

Based on the above, we affirm our holding in Tyler and conclude that Potts' Sixth 

Amendment rights were not violated when the district court made factual findings 

authorizing the State to prosecute Potts as an adult. 

POSTRELEASE SUPERVISION

Finally, Potts argues that the district court erred by noting within the journal entry 

of judgment that Potts was subjected to lifetime postrelease supervision for all of his 

convictions. He argues that this court should order the preparation of a nunc pro tunc or 

amended journal entry of judgment to reflect that he is subject to lifetime parole for the 

felony-murder conviction and 36 months of postrelease supervision for the criminal 

discharge of a firearm and burglary convictions. The State concedes this issue.

A criminal sentence is effective when pronounced from the bench at the 

sentencing hearing; it does not derive its effectiveness from the journal entry. Therefore, 

a journal entry that imposes a sentence that varies from the sentence pronounced from the 

bench is erroneous and must be corrected to reflect the actual sentence imposed. State v. 
26

Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012); see also State v. Mebane, 278 Kan. 131, 

136, 91 P.3d 1175 (2004) (explaining nunc pro tunc orders are appropriate to correct 

clerical errors arising from oversight or omission). A journal entry of judgment may be 

corrected "at any time" by a nunc pro tunc order. See K.S.A. 22-3504(2); Mason, 294 

Kan. at 677.

Under K.S.A. 2012 Supp. 22-3717(b)(2), a person convicted of felony murder is 

"eligible for parole after serving 20 years of confinement without deduction of any good 

time credits." Under subsection (d)(1)(A), a person convicted of a nondrug severity level 

3 crime (such as criminal discharge of a firearm resulting in great bodily harm, see 

K.S.A. 2012 Supp. 21-6308[b][1][B]) "must serve 36 months, plus the amount of good 

time and program credit earned and retained . . . on postrelease supervision." In addition, 

subsection (d)(1)(F) of K.S.A. 2012 Supp. 22-3717 states: 

"In cases where sentences for crimes from more than one severity level have 

been imposed, the offender shall serve the longest period of postrelease supervision as 

provided by this section available for any crime upon which sentence was imposed 

irrespective of the severity level of the crime. Supervision periods will not aggregate." 

Thus the controlling term of postrelease supervision applicable to Potts' criminal 

discharge of a weapon and burglary convictions is 36 months. See K.S.A. 2012 Supp. 

21-5807(c)(1)(C) (vehicular burglary is a nondrug severity level 9 crime). 

At sentencing, the district court judge stated that for the felony-murder conviction, 

he was sentencing Potts to "a term of life without eligibility for parole until you have 

served twenty years." But shortly after announcing this sentence, the judge stated that 

"[p]ost-release will be life." With regard to the criminal discharge of a firearm conviction, 

the district judge indicated that he was imposing lifetime parole. For the burglary 
27

conviction, the judge did not announce a term of postrelease supervision. The 

subsequently filed journal entry of judgment indicates that the judge imposed lifetime 

postrelease supervision for all three convictions.

It appears that the journal entry of judgment reflects, in part, the sentence that the 

district court pronounced from the bench at sentencing; thus it cannot be corrected by a 

nunc pro tunc order. State v. Vanwey, 262 Kan. 524, Syl. ¶ 2, 941 P.2d 365 (1997) ("A 

nunc pro tunc order under K.S.A. 22-3504[2] may only be used to correct actual clerical 

errors or errors arising from oversight or omission."). Instead of issuing a nunc pro tunc 

order, the appropriate remedy is to vacate the lifetime postrelease supervision period that 

the district court imposed and remand the case for resentencing with instructions that the 

district court impose lifetime parole for the felony-murder conviction and 36 months of 

postrelease supervision for the criminal discharge of a firearm and burglary convictions. 

See K.S.A. 22-3504(1) (an illegal sentence can be corrected at any time); State v. 

LaBelle, 290 Kan. 529, Syl. ¶ 1, 231 P.3d 1065 (2010) ("An illegal sentence is a sentence 

. . . which does not conform to the statutory provision, either in character or the term of 

the punishment authorized . . . .").

CONCLUSION 

We affirm Potts' convictions and the accompanying prison sentences. But we 

vacate the lifetime postrelease supervision term that the district court imposed and 

remand with directions that the district court impose lifetime parole for the felony-murder 

conviction and 36 months of postrelease supervision for the criminal discharge of a 

firearm and burglary convictions.