1

NOT DESIGNATED FOR PUBLICATION

No. 121,770

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DANIEL ROMAN MUNOZ,

Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge. Opinion filed January 14, 

2022. Affirmed in part, reversed in part, sentences vacated, and case remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., POWELL and HURST, JJ.

BUSER, J.: Daniel Roman Munoz appeals his convictions and sentences for 

second-degree murder, attempted second-degree murder, criminal possession of a 

firearm, and theft. He raises several claims of error. Munoz contends his convictions 

should be reversed because the district court (1) improperly admitted hearsay statements 

made by the murder victim; (2) improperly admitted jail recordings of conversations 

Munoz had with his mother; (3) did not give a limiting instruction regarding K.S.A. 60-

455 evidence; (4) did not obtain a jury trial waiver from Munoz regarding his stipulation 

to the charge of criminal possession of a firearm; and (5) made cumulative errors 

warranting a new trial.
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Regarding sentencing, Munoz asserts the district court erred by (1) considering his 

prior conviction for criminal threat at sentencing; (2) failing to consider his financial 

resources when imposing Board of Indigents' Defense Services (BIDS) attorney fees; and 

(3) violating his constitutional rights by considering his prior convictions at sentencing 

without first presenting them to a jury.

After a thorough review of the issues presented, we affirm the convictions for 

second-degree murder, attempted second-degree murder, and theft; reverse and remand 

the conviction for criminal possession of a firearm; vacate the sentences imposed, and 

remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 2018, at about 8 a.m., Topeka Police Department officers responded to 

a 911 call regarding a shooting at a residence in Topeka. Upon arrival, officers found 

Pierce Ragsdale lying in a nearby alley with gunshot wounds. After calling an 

ambulance, the officers spoke with Armando Munoz, who lived at the address with his 

wife, Marita Veasey, and son, Daniel Munoz. Armando told the officers he was asleep in 

his house when he was awakened by the sound of gunshots. Armando said he went to the 

window and saw his son, Munoz, firing a gun at two people he did not know, then 

chasing them down the alley while firing the gun. Sergeant Vidal Campos transported 

Armando to the police station, where the officer recorded Armando's statement in writing 

at Armando's request. When the office read the statement back to Armando, Armando 

stated, "Yes," that the statements he provided were true, and then he signed the written 

statement.

About the time of the shooting, Nikki England was driving home in the 400 block 

of SE Lafayette, when she observed an individual—later identified as Ramon Mathews—

running out of the alley in a panic towards her car. England could see blood on Mathews' 
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shirt and she thought he was injured by the way he was running. England and her 

passenger tried to get Mathews into the back seat of her car, but he ran past her.

As England reversed her car to catch up with Mathews, she observed a man run 

out of the alley and get inside a neutral-colored sedan. She recognized this individual as 

Munoz, a man she had known for several years.

England convinced Mathews to get into her car so she could take him to the 

hospital. On the way there, England asked Mathews several times, "Who did this to 

you?" At first Mathews responded that it was "my Homeboy," but later, as he was losing 

consciousness, he said that it was "Lonely." According to England, Lonely was the street 

name for Munoz. England took Mathews to the hospital, where he underwent surgery for 

gunshot wounds to his upper body. Mathews died about six days later.

About an hour after the shootings, Munoz returned home and was arrested. During 

a search incident to his arrest, officers found a set of car keys in his pocket. That 

afternoon a neighbor, Amber Correa, called the police to report an unfamiliar Toyota 

Camry parked in her neighbor's driveway with a handgun visible in the center console. 

According to Correa, she noticed the Camry in the driveway about 9:30 a.m. and had 

seen Munoz driving the Camry the day prior to the shootings before parking it in the 

driveway at midnight. Officers learned the vehicle had been reported stolen on the day 

before the shootings. The car keys seized from Munoz during his arrest unlocked the 

doors to the Camry.

The firearm found inside the Camry, a Smith and Wesson 9mm handgun, was 

seized. Forensic firearm testing by James Stevens, an examiner for the Kansas Bureau of 

Investigation (KBI) identified the weapon as the handgun which fired a bullet collected at 

the crime scene, and shell casings which were fired from the handgun which were also 

found in the alley where the shootings occurred.
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The State originally charged Munoz with two counts of attempted first-degree 

murder and one count of criminal possession of a firearm. After Mathews died, the State 

amended the complaint to upgrade one of the attempted murder charges to first-degree 

murder and added a charge for the theft of the Camry. The State later obtained a grand 

jury indictment and substituted the indictment for the complaint.

The jury trial began on December 10, 2018. Armando testified in the State's casein-chief at trial. According to Armando, he was in bed asleep on the morning of June 9, 

2018, when he heard gunshots outside. Armando looked outside but could not see 

anything, so he went out to the alley where he saw "two guys laying there." Armando 

said he did not know what he told the police when they arrived after the incident because 

he was drunk and "on [his] way to a hangover." When asked if he told the officers he was 

drunk, Armando said, "They could see me. They know what they doing. They know their 

job. They can tell if a man is drunk or not."

The prosecutor presented Armando with a written statement containing his 

signature and the document was admitted in evidence. Armando denied telling the police 

he saw Munoz shooting a handgun but acknowledged signing the statement. He testified, 

"I must have signed it and I didn't know I signed it until now." Armando could not recall 

if he went to the police station or where he had signed the statement. When asked if 

anyone had told him to change what he saw the day the of shooting, Armando responded, 

"Why would they do that?" and "That's a stupid question." He denied having been asked 

to change his statement, and again denied having told the officers he saw his son shooting 

a handgun.

Sergeant Campos testified that he was the supervising officer who responded to 

the 911 call. According to the Sergeant, he spoke with Armando who informed him that 

he saw his son, Munoz, shooting at two individuals. At that time, standing a short 

distance away from Armando, Sergeant Campos did not smell any alcohol, nor did 
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Armando tell him he was drunk. Armando agreed to come down to the police station to 

complete a written statement. At the station, Sergeant Campos videotaped the interview 

with Armando. This videotape was admitted in evidence. Sergeant Campos wrote out 

Armando's statement because Armando "just didn't want to write it. He said he couldn't 

write." Sergeant Campos then read the statement aloud and had Armando sign it. The 

statement read:

"'Mr. Munoz was sleeping in the back bedroom when I heard gunshots, more 

than five. I looked out the window and saw Daniel, my son, shooting at two people. He 

saw all three running down the alley. I went outside and saw one person lying in the 

alley, didn't see anyone after that.'"

Munoz' mother, Marita, also testified at trial. According to Marita, she was 

awakened by gunshots outside her home. After hearing the gunshots, Marita took her 

grandchildren, who were asleep inside the home, and left for her daughter's nearby 

residence. When Marita returned home, the police were there. Marita testified that 

Armando "had a bad hangover" when she returned to the home. She testified that 

Armando drank beer every morning and that morning he was irritated "because he 

wanted a beer." Marita also testified that, after Munoz' arrest, she spoke with him at the 

jail. This questioning elicited an objection from defense counsel which was overruled by 

the district court. This evidentiary issue will be addressed in the analysis section.

At the trial, England testified about the colloquy between her and Mathews during 

the trip to the hospital. Defense counsel renewed his pretrial objection to the admission of 

this evidence, but the district court admitted it. This evidentiary issue will also be 

addressed in the analysis section.

Other officers testified on behalf of the State. Officer Brandon Uhlrig, one of the 

first officers to arrive on scene, testified that Armando approached him and, without 
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prompting, "immediately stated that his son shot those boys." This conversation was 

recorded on Uhlrig's Axon body camera and admitted in evidence. Officer James Cuevas 

testified that he arrived at the hospital after England called 911 while transporting 

Mathews to the hospital. Officer Cuevas did not speak with Mathews directly but heard 

him tell medical personnel that he did not know what happened or who shot him.

At the conclusion of the trial, the jury found Munoz guilty of the lesser included 

offenses of second-degree murder and attempted second-degree murder. He was found 

guilty as charged of criminal possession of a firearm and theft.

Sentencing was continued so the defense could obtain a psychological evaluation 

of Munoz for purposes of supporting his motion for a downward durational sentencing 

departure. The psychological evaluation revealed a diagnosis of "Bipolar I Disorder, 

Manic, with Psychotic features; Antisocial Personality Disorder, and substance use 

disorders involving marijuana and other substances." As discussed in the analysis section 

of this opinion, at sentencing Munoz also asserted assorted errors in his criminal history 

score.

The district court denied Munoz' departure motion and sentenced him to 

consecutive sentences of 618 months and 59 months on the murder and attempted murder 

convictions, respectively, and concurrent sentences of 8 months and 12 months on the 

criminal possession of a firearm and theft convictions. In addition, the court ordered 

Munoz to pay BIDS attorney fees of $8,625. The claim of error concerning the district 

court's order regarding BIDS attorney fees is discussed later.

Munoz timely appealed.
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ADMISSION OF VICTIM'S HEARSAY STATEMENTS

On appeal, Munoz contends that admitting in evidence Mathews' statements to 

England, which incriminated Munoz, violated the Confrontation Clause of the Sixth 

Amendment to the United States Constitution. In response, the State asserts that 

Mathews' comments were not testimonial statements covered by the Confrontation 

Clause.

Before trial, the State moved to have Mathews declared an unavailable witness 

and to admit the statements he made to England under the unavailable witness exception 

of K.S.A. 60-460(d)(3). The State argued that Mathews' statements were nontestimonial 

because the primary purpose of the conversation was not to gather evidence for a future 

prosecution. In response, Munoz claimed the statements were testimonial because 

Mathews should have known the information he provided to England could be used in a 

police investigation and prosecution.

At the hearing on the motion, England testified she did not know Mathews before 

the incident. England knew he was "very hurt" because he was bleeding from his chest 

and she "could see through him." She asked Mathews, "Who did this to you? Who did 

this to you, man? Who did this?" immediately after he got into her car. Mathews 

responded with "'my home boy.'" After England called 911, she repeated the same 

questions. This time, Mathews said, "'Lonely.'" According to England, Lonely was 

Munoz' street name.

Mathews did not provide any other information, and according to England, he 

"was having a hard time" answering questions. England testified that she wanted to know 

who shot Mathews because she "felt that it was probably going to be important in the 

end" because "[h]e was really hurt." She understood that obtaining that information 

would be important to report to the police.
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Upon arrival at the hospital, England parked her car quickly and ran inside, 

screaming at hospital personnel to help Mathews. Hospital staff went to her car and 

brought Mathews into the hospital. England promptly left.

After leaving the hospital, England went home to check on her children and then 

went to her attorney's residence because she "was scared" and "needed help." After 

conferring with her attorney, England spoke with police officers later in the morning. 

According to England, she told the officers what had occurred, including Mathews' 

statements, and that she believed his reference to Lonely was a reference to Munoz.

At the conclusion of the hearing, the trial court found Mathews' statements were 

nontestimonial and admissible under K.S.A. 60-460(d)(3). The trial court ruled that 

Mathews' statements "would be admissible in trial under the hearsay exception and would 

not violate the Court's decision in Crawford [v. Washington, 541 U.S. 36, 124 S. Ct. 

1354, 158 L. Ed. 2d 177 (2004)]."

At trial, defense counsel objected to the admission of Mathews' statements as 

hearsay, which the trial court overruled. Munoz has sufficiently preserved this issue for 

appeal. See K.S.A. 60-404; State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014) 

(pretrial objection to admission of evidence must be preserved by contemporaneous or 

continuing objection at trial). At trial, England reprised the testimony she had given 

previously at the pretrial hearing.

Preliminarily, we identify our standard of review and the relevant Kansas statute 

pertaining to Mathews' statements. Appellate courts typically review a trial court's 

determination that hearsay is admissible under a statutory exception for an abuse of 

discretion. State v. Coones, 301 Kan. 64, 80, 339 P.3d 375 (2014). However, appellate 

courts exercise unlimited review, as in this instance, when an evidentiary ruling 
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implicates an individual's right to confront witnesses under the Sixth Amendment. State 

v. Williams, 306 Kan. 175, Syl. ¶ 1, 392 P.3d 1267 (2017).

K.S.A. 60-460 requires that hearsay statements be excluded unless the statement 

qualifies under an exception. The State relied on the exception provided in K.S.A. 60-

460(d)(3), which allows the admission of a hearsay statement made by an unavailable 

declarant "at a time when the matter had been recently perceived by the declarant and 

while the declarant's recollection was clear and was made in good faith prior to the 

commencement of the action and with no incentive to falsify or to distort."

Notably, Munoz does not challenge the applicability of K.S.A. 60-460(d)(3). 

Instead, he focuses solely on the trial court's determination that Mathews' statements were 

nontestimonial and, therefore, not violative of the Confrontation Clause. As a result, the 

constitutional question presented on appeal is whether the Confrontation Clause 

precluded the admission of Mathews' hearsay statements.

Munoz contends that admitting Mathews' statements violated his confrontation 

rights because the statements were testimonial. Munoz reasons that the primary purpose 

of England's questioning was to "learn the identity of the shooter, with the goal of aiding 

in the criminal proceedings." He claims that under the circumstances a reasonable person 

could conclude the statements would be used later in criminal proceedings because they 

were made "on the way to the hospital, after the shooting, and not in response to an 

ongoing emergency," and "were not about [his] condition, but rather about what had 

occurred." In response, the State emphasizes that Mathews did not make the statements to 

a law enforcement officer or government official, and the conversation was "brief, 

informal, and spontaneous."

The Confrontation Clause of the Sixth Amendment to the United States 

Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . 
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to be confronted with the witnesses against him." Similarly, a criminal defendant in 

Kansas has the right to "meet the witness face to face." Kansas Constitution Bill of 

Rights, § 10. The United States Supreme Court held in Crawford, that the Confrontation 

Clause prohibits "admission of testimonial statements of a witness who did not appear at 

trial unless he was unavailable to testify, and the defendant had had a prior opportunity 

for cross-examination." 541 U.S. at 53-54.

We begin the analysis with the seminal United States Supreme Court opinion in 

Crawford wherein the Supreme Court clarified that the test for Confrontation Clause 

challenges turns on whether the hearsay statements were "testimonial." Crawford, 541 

U.S. at 59. While Crawford expressly declined to provide a comprehensive definition of 

"testimonial," the Court observed that at a minimum the term included "[s]tatements 

taken by police officers in the course of interrogations" but extended to "'pretrial 

statements that declarants would reasonably expect to be used prosecutorially'" and 

"'statements that were made under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use at a later trial.'" 541 

U.S. at 51-52.

A few years later, in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. 

Ed. 2d 224 (2006), the United States Supreme Court revisited Crawford in a case 

involving the admission of statements made by the victim during a 911 call that the 

defendant hit her. In Davis, the Supreme Court again declined to provide a 

comprehensive definition of "testimonial," but provided a general test:

"Statements are nontestimonial when made in the course of police interrogation under 

circumstances objectively indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing emergency, and that the 

primary purpose of the interrogation is to establish or prove past events potentially 

relevant to later criminal prosecution." 547 U.S. at 822.
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In applying this test, the Supreme Court noted that unlike Crawford, the 

statements in Davis were (1) describing events as they were happening, (2) made during 

an ongoing emergency, (3) necessary to resolve the present emergency, rather than 

simply learn what had happened, and (4) "frantic" and "provided over the phone, in an 

environment that was not tranquil." 547 U.S. at 827. The Supreme Court concluded that 

the statements made during the 911 call in Davis were not testimonial because the 

"primary purpose was to enable police assistance to meet an ongoing emergency." 547 

U.S. at 828.

Several years later, the United States Supreme Court addressed a case sharing 

similarities to the one on appeal in Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 

179 L. Ed. 2d 93 (2011). Bryant involved statements by a gunshot victim identifying the 

defendant as the shooter, with the key difference being that the statements were made to 

the police officers who responded to the 911 call and spoke to the victim. When 

reviewing whether these statements were testimonial, the Supreme Court examined its 

prior decisions in Crawford and Davis and clarified what it means for the primary 

purpose of an interrogation to be "'to enable police assistance to meet an ongoing 

emergency.'" Bryant, 562 U.S. at 359.

The Court also discussed the victim's "mixed motives" when making statements to 

the police about an ongoing emergency and opined that a victim's "most likely" purpose 

in making similar statements would be to end the threat. 562 U.S. at 368. But "that does 

not necessarily mean that the victim wants or envisions prosecution of the assailant." 562 

U.S. at 368. The Court also noted in the alternative that a severely injured victim "may 

have no purpose at all in answering questions" because the injuries "could be so 

debilitating as to prevent her from thinking sufficiently clearly to understand whether her 

statements are for the purpose of addressing an ongoing emergency or for the purpose of 

future prosecution." 562 U.S. at 368-69. The Bryant court went on to hold that the 
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statements were nontestimonial based on an objective evaluation of the circumstances, 

emphasizing that:

"[t]he existence of an emergency or the parties' perception that an emergency is ongoing 

is among the most important circumstances that courts must take into account in 

determining whether an interrogation is testimonial because statements made to assist 

police in addressing an ongoing emergency presumably lack the testimonial purpose that 

would subject them to the requirement of confrontation. . . . [T]he existence and duration 

of an emergency depend on the type and scope of danger posed to the victim, the police, 

and the public." 562 U.S. at 370-71 (citing Davis, 547 U.S. at 822).

The Supreme Court found an ongoing emergency existed because the facts 

involved "an armed shooter, whose motive for and location after the shooting were 

unknown, had mortally wounded [the victim] within a few blocks and a few minutes of 

the location where the police found [the victim]." 562 U.S. at 374. The Court also 

determined the objective circumstances showed that the "'primary purpose of the 

interrogation' was 'to enable police assistance to meet an ongoing emergency.' [The 

victim's] identification and description of the shooter and the location of the shooting 

were not testimonial hearsay. [Citation omitted.]" 562 U.S. at 377-78.

Returning to the case on appeal, the State emphasizes that England was not a law 

enforcement officer, and that Mathews' statements were "brief, informal, and 

spontaneous,"—i.e., not made during a formal interrogation. The United States Supreme 

Court and Kansas Supreme Court have declined to categorically exclude statements made 

to non-law enforcement or government actors from the class of testimonial statements. 

See Ohio v. Clark, 576 U.S. 237, 246, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015); 

Williams, 306 Kan. at 198. But the identity of the listener is "'highly relevant' because 

'[s]tatements made to someone who is not principally charged with uncovering and 

prosecuting criminal behavior are significantly less likely to be testimonial than 

statements given to law enforcement officers.'" Williams, 306 Kan. at 194 (quoting Clark, 
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576 U.S. at 249). England was obviously not conducting a formal interview or 

interrogation as Mathews was grievously wounded in her car traveling to the hospital. 

She was simply a good Samaritan attempting to render aid to Mathews while trying to 

ascertain who had shot him. In this way, England's role as a third-party rendering aid in 

an emergency weighs in favor of the statements being nontestimonial.

Another point of contention between the parties is Mathews' expectation of how 

his statements would be used, specifically whether "'an objective witness [would] 

reasonably believe such a statement would later be available for use in the prosecution of 

a crime[.]'" State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007); Williams, 306 Kan. 

at 191. In this regard, Mathews' reluctance to disclose the identity of the shooter to 

England and his use of monikers to answer England's questions suggests that Mathew's 

purpose was not to convey essential incriminatory information to aid in the police 

investigation and prosecution of Munoz.

Munoz asserts that no "ongoing emergency" existed at the time of England's 

questioning because the shooting had already occurred. This assertion is contrary to the 

evidence, however, since Mathews had sustained his gunshot wounds only moments 

before England picked him up from the crime scene and observed the possible assailant 

get into a car. Mathews was gravely injured, the assailant was unknown, in the vicinity, at 

large, and presumably armed with a firearm. The Supreme Court in Bryant determined 

that an ongoing emergency existed based on essentially the same circumstances. 562 U.S. 

at 374. As a result, the fact that England, although not a law enforcement officer, was 

confronted with an ongoing emergency at the time Mathews identified Munoz as the 

shooter is "among the most important circumstances" to be considered. See 562 U.S. at 

370.

Finally, the Bryant court also noted that a victim's medical condition is a relevant 

consideration in the analysis of whether the statements were testimonial. 562 U.S. at 368-
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69. On the one hand, statements made by a "severely injured victim" like Mathews may 

not be sufficiently credible or reliable because the responses to questions may be "simply 

reflexive." 562 U.S. at 368-69. On the other hand, given Mathews' grievous medical 

condition, we doubt that a potential future criminal prosecution of Munoz was uppermost 

on his mind. Moreover, there is no indication that when Mathews responded to England's 

questions, he intended for his statements to be used in a future criminal prosecution.

In summary, we are persuaded that Mathews' statements were nontestimonial and, 

therefore, not violative of the Confrontation Clause. An objective witness under these 

urgent circumstances would not intentionally convey the identity of the assailant with a 

purpose to provide evidence to facilitate a criminal prosecution. On the other hand, the 

primary purpose of England's questioning was to identify Mathews' shooter so that she 

could "'enable police assistance to meet an ongoing emergency'" of an unknown, armed 

assailant who had just shot Mathews, and was possibly seen at the crime scene, a short 

distance away. 562 U.S. at 378 (quoting Davis, 547 U.S. at 822). We find no 

constitutional error in the district court's admission of Mathews' statements in evidence at 

trial.

ADMISSION OF JAILHOUSE RECORDINGS BETWEEN MUNOZ AND HIS MOTHER

Munoz contends the trial court erred in admitting jailhouse recordings of calls and 

visits between him and his mother. At trial, defense counsel made a two-part objection. 

First, defense counsel claimed that because the recordings were made in jail, it suggested 

that Munoz was necessarily guilty. Second, defense counsel objected because the 

recordings were more prejudicial than probative. The State responded that the jurors were 

generally aware that Munoz was being held in jail. As for the jailhouse recordings, the 

State explained that the recordings went to the weight and credibility of Armando's 

testimony. The trial court overruled defense counsel's objection and allowed the State to 
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admit the videos of Munoz' conversations with Marita. The recordings were marked as 

State's Exhibit 91 and 92 and published to the jury.

On appeal, Munoz emphasizes that the recordings were not relevant to prove his 

consciousness of guilt, and, while minimally probative, were overly prejudicial. Munoz 

also claims the admission of the recordings was not harmless because the jury gave the 

recordings "significant consideration" by requesting to view them again, and because of 

the lack of physical evidence tying him to the shootings.

The State counters that the recordings show Munoz was trying to convince his 

father to retract his statements to the police because they were extremely damaging to his 

defense, thus demonstrating his consciousness of guilt. According to the State, even if 

erroneously admitted, Munoz' statements did not affect the jury's verdicts because of the 

overwhelming evidence establishing Munoz as the shooter.

The trial court admitted the recordings over Munoz' objection. As a result, he has 

preserved this issue for appeal. See K.S.A. 60-404; Richard, 300 Kan. at 721.

Preliminarily, we consider our standards of review and Kansas law regarding the 

admissibility of evidence at trial. Admission of evidence involves several legal 

considerations: determining relevance; identifying and applying legal principles 

including rules of evidence; and weighing prejudice against probative value. See State v. 

Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010). Depending on the consideration at 

issue, an appellate court applies different standards of review.

First, a court must determine whether the evidence is relevant. All relevant 

evidence is admissible unless it is prohibited by statute, constitutional provision, or court 

decision. See K.S.A. 60-407(f); Nauheim v. City of Topeka, 309 Kan. 145, 153, 432 P.3d 

647 (2019). K.S.A. 60-401(b) defines relevant evidence as "evidence having any 
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tendency in reason to prove any material fact." See State v. Lowery, 308 Kan. 1183, 1226, 

427 P.3d 865 (2018). Relevance has two elements: a materiality element and a probative 

element. See State v. Miller, 308 Kan. 1119, 1167, 427 P.3d 907 (2018).

Evidence is material when the fact it supports is in dispute or in issue in the case. 

Miller, 308 Kan. at 1167. The appellate standard of review for materiality is de novo. 308 

Kan. at 1166. Evidence is probative if it has any tendency to prove any material fact. 308 

Kan. at 1167. Probativity is reviewed for abuse of discretion. 308 Kan. at 1166.

A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or 

unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State 

v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The party asserting an abuse of 

discretion bears the burden of showing the court abused its discretion. State v. Thomas, 

307 Kan. 733, 739, 415 P.3d 430 (2018).

Finally, even if evidence is relevant, a district court has discretion to exclude it 

where the court finds its probative value is outweighed by its potential for producing 

undue prejudice. See K.S.A. 60-445. An appellate court reviews any such determination 

for an abuse of discretion. Ingham, 308 Kan. at 1469.

The jailhouse recordings at issue were contained in two exhibits admitted at trial. 

The following are excerpts from the recordings. State's Exhibit 91 contained two audio 

recordings. On the first recording Munoz made these statements to his mother:

• That he had "seen [his] lawyer today and was wondering . . . if Dad was 

gonna call and talk to them. . . . Dad was supposed to tell them I didn't do 

it."

• "I really need that [because] I can't . . . have him . . . going and saying what 

he said . . . the first time, then I would be in trouble."
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• "You gotta let him know that and retract that statement."

On the second recording, Munoz made these statements to his mother:

• "Dad's gotta retract his statement he gave to the D.A. and to the police 

[because] they . . . have him on video cam and he gave a written statement. 

He gotta retract his statement."

• "He has to tell them that there was no one there, that I snatched the . . . 

burner from somebody and took off just like everyone else did. Yes, we 

gonna tell them . . . how everybody was there and everyone scattered. You 

gotta do that."

State's Exhibit 92 contained video recordings of several jailhouse visits. During a 

visit on August 12, 2018, Munoz told his mother:

"[T]ell Dad and let him know that, hey, when that [expletive] happened, that 

there was a whole bunch of people and everybody just started running, you know what I 

mean? . . . That's all Dad gotta say. There was a whole bunch of people, my son snatched 

something from somebody . . . everybody took off running . . . . They say that, I won't 

have to worry about for real . . . the car. I should get off for that though; I'm tell them 

someone tried to sell it to me like they did, you know, like someone asked if I wanted to 

buy one, I took it for a test spin, you know what I mean, didn't even really want it . . . 

couldn't get it."

And finally, during a visit on November 27, 2018, Munoz told his mother: "My 

lawyer said my case is weak because Dad identified me. But Dad has to tell them like 

what he said, that he said it wasn't me. If Dad don't tell them that they're going to 

[expletive] convict me."
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The trial court concluded the recordings were admissible in evidence because the 

statements showed Munoz' consciousness of guilt, relying on State v. Lippard, No. 

114,588, 2017 WL 3837700, at *5 (Kan. App. 2017) (unpublished opinion).

Munoz argues that the trial court cannot rely on Lippard because it is an 

unpublished opinion. See Supreme Court Rule 7.04(g)(2)(A) (2021 Kan. S. Ct. R. 47) 

("An unpublished memorandum opinion . . . is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel[.]") He also disagrees 

with the Lippard panel's application of State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 

140 (2014), arguing that "merely attempting to persuade a witness to testify in a certain 

manner, without more, does not show a defendant's consciousness of guilt."

In Huddleston, the defendant was in jail pending trial for a murder allegedly 

committed by the defendant, her sister, and the defendant's former romantic partner. In 

letters, the defendant advised her sister how to testify against their codefendant to 

implicate her as the sole perpetrator. Our Supreme Court agreed with the trial court that 

the letters were both material and probative—and thus relevant—to the defendant's 

consciousness of guilt. 298 Kan. at 960-61. Additionally, our Supreme Court found no 

abuse of discretion in their admission because the probative value of the letters 

outweighed their prejudicial effect. 298 Kan. at 963-64.

In Lippard, the State charged the defendant with multiple sex crimes committed 

against his minor daughters. In several recorded phone calls made while he was in jail 

awaiting trial, Lippard urged the victims' grandmother to make sure the victims knew 

how bad the jail conditions were and that they would never see him again if they testified 

and he was convicted. The trial court allowed the admission of the recordings because 

they were evidence of Lippard's consciousness of guilt. On appeal, our court affirmed the 

convictions based on the Huddleston court's recognition that "'Kansas and other state 

cases have held that evidence demonstrating a defendant's consciousness of guilt can be 
19

material to several issues in a criminal case including intent, identity, plan, or other 

matters.'" Lippard, 2017 WL 3837700, at *5 (quoting Huddleston, 298 Kan. at 960).

Based on our review, we find that Munoz' jailhouse recordings urging his mother 

to persuade Armando to retract his incriminating statements were relevant, material, and 

probative in establishing Munoz' consciousness of guilt. The statements clearly showed 

that Munoz was aware that his father identified him as the shooter to the police, and these 

statements, unless retracted, would result in Munoz' convictions in the shootings. The 

statements also showed that Munoz conjured up a false scenario in which he was merely 

with a group of people at the shooting scene, innocently obtained the firearm, and

unknowingly possessed the stolen car in which the murder weapon was found.

We also find no abuse of discretion in the trial court's finding that the recordings 

were more probative than prejudicial. Apart from the relevance that the recordings 

identified Munoz as the shooter, the recordings also corroborated the officers' testimony 

that Armando identified Munoz as the shooter at the crime scene, and impeached 

Armando's trial testimony when he retracted his on-scene statements to police that he 

observed his son shooting a firearm at two individuals. On the other hand, the prejudicial 

effect was slight given that Munoz' recorded statements to his mother were not 

threatening but persuasive in tone and did not disclose any evidence of prior crimes or 

proclivities towards violence. For all these reasons, we find no error.

FAILURE TO GIVE A LIMITING INSTRUCTION REGARDING JAILHOUSE RECORDINGS 

Munoz contends the trial court erred in not instructing the jury that his attempt "to 

persuade his father and mother to [testify] in a certain manner, which amounted to 

evidence of intimidation of a witness under K.S.A. 2020 Supp. 21-5909(a)" could not be 

used "to determine Mr. Munoz's general propensity to commit the crimes charged in the 

present case." For its part, the State argues that "[a]lthough Munoz has not shown that his 
20

jailhouse statements present evidence of witness intimidation, . . . the State acknowledges 

his statements may be evidence of a crime or civil wrong which required a limiting 

instruction from the district court."

Appellate courts use a multi-step process for analyzing jury instruction challenges:

"When analyzing jury instruction issues, we follow a three-step process:

'(1) determining whether the appellate court can or should review the issue, i.e., whether 

there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) 

considering the merits of the claim to determine whether error occurred below; and (3) 

assessing whether the error requires reversal, i.e., whether the error can be deemed 

harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).

Whether a party has preserved a jury instruction issue affects the appellate court's

reversibility inquiry at the third step. 307 Kan. at 317. At the second step, appellate courts 

consider whether the instruction was legally and factually appropriate. 307 Kan. at 318. 

Appellate courts use unlimited review to determine whether an instruction was legally 

appropriate. State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016).

Munoz candidly concedes that defense counsel did not request a limiting 

instruction relating to the jailhouse recordings. This is important because, under the third 

step, if the challenging party does not object to the lack of a jury instruction below, the 

appellate court applies a clear error standard, and it will only reverse if an error occurred 

and the court is firmly convinced that the jury would have reached a different verdict if 

the instructional error had not occurred. The party claiming a clear error has the burden to 

demonstrate the necessary prejudice. McLinn, 307 Kan. at 318. 

Both parties recognize that our Supreme Court held in State v. Gunby, 282 Kan. 

39, Syl. ¶ 3, 144 P.3d 647 (2006), that when a trial court admits evidence that the 
21

defendant committed other crimes, "to avoid error, the district judge must give a limiting 

instruction informing the jury of the specific purpose for admission."

Because the reversibility inquiry is determinative in this case, we will assume—

without deciding—that Munoz has shown error in the failure to give a limiting 

instruction. The question then becomes, was there clear error?

The extent of Munoz' argument on clear error is that because the jury asked to 

review the jailhouse recordings again during deliberations, "there is a real possibility that 

had the district court given a limiting instruction, the jury would have returned a different 

verdict." This argument is inexplicable. By Munoz' own acknowledgement, he must 

firmly convince our court that the jury would have reached a different verdict had the 

presumed instructional error not occurred. McLinn, 307 Kan. at 318. Munoz' brief 

argument is not convincing. Moreover, issues not adequately briefed are considered 

waived or abandoned. State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).

As detailed in the Factual and Procedural Background section, there was 

substantial, competent evidence of Munoz' guilt for the crimes of conviction. Given this 

wealth of incriminating evidence, we are not firmly convinced that a limiting instruction 

which informed the jury that the evidence of the jailhouse recordings could not be used 

"to determine Munoz' general propensity to commit the crimes charged in the present 

case" would have had any effect on the jury other than to alert the jurors that by 

attempting to persuade his mother to convince his father to retract his statement to the 

police, Munoz had committed yet another crime.

We are not firmly convinced that the jury would have reached a different verdict if 

the presumed instructional error had not occurred.
22

FAILURE TO OBTAIN A JURY TRIAL WAIVER REGARDING STIPULATION

During trial, Munoz and the State jointly stipulated to an element of the crime of 

criminal possession of a firearm, as provided in K.S.A. 2018 Supp. 21-6304. The 

stipulation was read to the jury:

"The following facts have been agreed to by the parties and are to be considered 

by you as true:

"1. That within five years proceeding on or about the 9th day of June, 2018, 

the defendant, Daniel Munoz, had been convicted of a felony other than 

those specified in subsection (a)(3)(A) of K.S.A. 21-6304, to wit: 

Shawnee County Case 13CR995. Defendant further stipulates he was not 

found to be in possession of a firearm in case number 13CR995."

On appeal, Munoz acknowledges that during trial he stipulated to the predicate 

felony which is an element necessary for conviction under K.S.A. 2018 Supp. 21-6304. 

For the first time on appeal, however, Munoz contends the trial court was required to 

obtain a voluntary jury trial waiver from Munoz before accepting his stipulation to an 

element of this crime.

Recognizing that he failed to preserve this issue for appeal, Munoz asserts our 

court can review this newly asserted issue for the first time because it presents a purely 

legal question on proven or admitted facts and it is finally determinative of the case. He 

also claims that failure to consider the issue would lead to a denial of his fundamental 

rights. See State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020) (recognizing 

exceptions to the general rule prohibiting consideration of new issues on appeal).

The State counters that Munoz has waived or abandoned this issue by not 

adequately explaining his failure to raise the issue below. See Supreme Court Rule 
23

6.02(a)(5) (2021 Kan. S. Ct. R. 35); State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 

(2018).

We are persuaded that Munoz has the better argument because whether a 

defendant's stipulation to an element of a charged offense constitutes a knowing and 

voluntary waiver of the right to a jury trial is a question of law subject to unlimited 

review. State v. Johnson, 310 Kan. 909, 918, 453 P.3d 281 (2019). We will consider the 

issue.

Although not mentioned in Munoz' appellate brief, the Kansas Supreme Court 

recently addressed a nearly identical claim in Johnson. In that case, the State similarly 

charged the defendant with criminal possession of a firearm, and he stipulated to the prior

felony as an element of the crime. The trial court accepted the stipulation without 

obtaining a jury trial waiver and instructed the jury about the stipulation during trial. Our 

Supreme Court unanimously held that accepting the stipulation without a waiver was 

reversible error because it violated the defendant's right to jury trial. 310 Kan. at 918-19. 

The Johnson court reasoned that

"[t]he Fifth and Sixth Amendments to the United States Constitution 'entitle [ ] criminal 

defendant[s] to "a jury determination that [he] is guilty of every element of the crime with 

which he is charged, beyond a reasonable doubt."' And when a defendant stipulates to an 

element of a crime, the defendant has effectively given up his or her right to a jury trial 

on that element. [Citations omitted]." 310 Kan. at 918-19.

Because a defendant has a fundamental right to a jury trial on all the elements of 

the charged crimes, courts may not accept a jury trial waiver "'unless the defendant, after 

being advised by the court of his right to trial by jury, personally waives his right to trial 

by jury, either in writing or in open court for the record.'" 310 Kan. at 919 (quoting State 

v. Irving, 216 Kan. 588, 589-90, 533 P.2d 1225 [1975]).
24

The State acknowledges Johnson but contends it was wrongly decided. However, 

our court is duty bound to follow Kansas Supreme Court precedent, absent some 

indication of a departure from a previous position. See State v. Rodriguez, 305 Kan. 

1139, 1144, 390 P.3d 903 (2017). We have no such indication here. Johnson is 

dispositive.

The record does not show that Munoz was advised by the trial court of his right to 

trial by jury on that element of the crime, or that he personally waived that right either in 

writing or in open court. We reverse Munoz' conviction for criminal possession of a 

firearm and remand for further proceedings.

CUMULATIVE ERROR

Munoz asserts that the cumulative effect of the errors claimed on appeal deprived 

him of a fair trial.

When determining whether cumulative error occurred below, appellate courts 

review whether the errors substantially prejudiced the defendant and denied the defendant 

a fair trial given the totality of the circumstances, which by necessity requires review of 

the entire record and involves unlimited review. State v. Moyer, 309 Kan. 268, 287, 434 

P.3d 829, cert. denied, 140 S. Ct. 135 (2019). In assessing the cumulative effect of errors 

during the trial, appellate courts examine the errors in the context of the entire record, 

considering how the trial judge dealt with the errors as they arose; the nature and number 

of errors and their interrelationship, if any; and the overall strength of the evidence. State 

v. Hirsh, 310 Kan. 321, 345-46, 446 P.3d 472 (2019).

When any of the errors being aggregated are constitutional in nature, the 

constitutional harmless error test applies, and the cumulative effect must be harmless 

beyond a reasonable doubt. State v. Robinson, 306 Kan. 1012, 1034, 399 P.3d 194 
25

(2017). The State, as the benefitting party, bears the burden of establishing the errors 

were harmless. See State v. Akins, 298 Kan. 592, 600, 315 P.3d 868 (2014) ("The State 

bears a higher burden to demonstrate harmlessness when the error is of constitutional 

magnitude.").

Munoz focuses his cumulative error argument on his evidentiary challenges and 

the failure to give a limiting instruction relating to the jailhouse recordings, but he has 

only established that an instructional error may have occurred. We note the trial court 

also erred by failing to secure a jury trial waiver before accepting Munoz' stipulation to 

an element of the criminal possession of a firearm charge. However, that error only 

impacted Munoz' constitutional right and did not affect the quality or quantity of 

incriminating evidence presented to the jury. We are persuaded that, for this reason, this 

error should not be included in the cumulative error analysis.

A single error cannot support reversal under the cumulative error doctrine. State v. 

Ballou, 310 Kan. 591, 617, 448 P.3d 479 (2019); see also State v. Butler, 307 Kan. 831, 

868, 416 P.3d 116 (2018) (citing both no error and single error rules). Because Munoz 

has shown only one presumed instructional error, we find no merit to his cumulative error 

argument.

CONSIDERATION OF PRIOR CRIMINAL THREAT CONVICTION AT SENTENCING

Munoz contends for the first time on appeal that the trial court erred during 

sentencing by including his prior 2009 conviction for criminal threat when calculating his 

criminal history score. Munoz argues the trial court should have disregarded this prior 

conviction because the presentence investigation (PSI) report did not show whether the 

conviction was for intentional or reckless conduct. Depending on the answer to that 

question, as discussed below, Munoz' prior conviction may be based on an 
26

unconstitutional statutory provision and, as a result, not properly included in his criminal 

history.

Munoz correctly points out that a defendant may raise a legal challenge to the 

classification of a prior conviction to lower a criminal history score for the first time on 

appeal under K.S.A. 2020 Supp. 22-3504(a), which allows a court to "correct an illegal 

sentence at any time while the defendant is serving such sentence." See State v. Dickey, 

301 Kan. 1018, 1034, 350 P.3d 1054 (2015). Additionally, a challenge to a criminal 

history calculation essentially raises a claim that the sentence is illegal because it "does 

not conform with the applicable statutory provision regarding the term of punishment 

authorized for the current conviction." 301 Kan. at 1034.

Our court generally has unlimited review over the trial court's classification of 

prior convictions for criminal history purposes under the revised Kansas Sentencing 

Guidelines Act (KSGA). However, our Supreme Court recently clarified in State v. 

Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019), that the type of challenge that 

Munoz raises "is a bit more nuanced because it is the State's burden to prove by a 

preponderance of the evidence that the defendant committed a crime for which 

classification is appropriate." As a result, the trial court's findings must be supported by 

substantial competent evidence. 309 Kan. at 1275 (citing State v. Hughes, 290 Kan. 159, 

162, 224 P.3d 1149 [2010]).

Substantial competent evidence refers to legal and relevant evidence that a 

reasonable person could accept as adequate to support a conclusion. State v. Doelz, 309 

Kan. 133, 138, 432 P.3d 669 (2019). When the record lacks substantial competent 

evidence to support a district court's criminal history classification, a remand is necessary 

to allow the district court to determine the appropriate classification. Obregon, 309 Kan. 

at 1275.
27

Munoz' argument is predicated on State v. Boettger, 310 Kan. 800, 450 P.3d 805 

(2019), in which our Supreme Court held that the "reckless disregard" provision of the 

Kansas criminal threat statute is unconstitutionally overbroad. See K.S.A. 2020 Supp. 21-

6810(d)(9) (A prior conviction "that has since been determined unconstitutional by an 

appellate court shall not be used for criminal history scoring purposes."). According to 

Munoz, the record is insufficient to determine whether his prior conviction was for 

intentional or reckless criminal threat because the PSI report does not distinguish between 

the two.

An identical sentencing challenge arose in State v. Grant-Adams, No. 121,833, 

2021 WL 2603344 (Kan. App. 2021) (unpublished opinion). For the first time on appeal, 

the defendant challenged inclusion of a prior criminal threat conviction based on Boettger

when the trial court calculated his criminal history score. In that case, the PSI report was 

the only document in the record establishing the conviction. Relying on Obregon, the 

panel concluded there was not substantial evidence to support including the criminal 

threat conviction and, as a result, vacated the sentence and remanded for resentencing. 

Grant-Adams, 2021 WL 2603344, at *11-12.

Here, the PSI alone does not provide substantial evidence because it only 

describes Munoz' criminal threat conviction by referring to the statute in effect at the 

time, K.S.A. 2009 Supp. 21-3419(a)(1). That version of the statute included both 

intentional and reckless intent language. Importantly, if the conviction was for a reckless 

criminal threat, Boettger would require the trial court to disregard the conviction at 

sentencing under K.S.A. 2020 Supp. 21-6810(d)(9). As a result, Munoz' criminal history 

would be reduced in a way favorable to Munoz.

The State bears the burden of proving an offender's criminal history by a 

preponderance of the evidence, and ordinarily a PSI report satisfies the State's burden 

without an objection by the defendant. K.S.A. 2020 Supp. 21-6814(b); Obregon, 309 
28

Kan. at 1275. However, "more is required when the summary does not indicate which 

version" of an offense a defendant has committed, even when there is no objection. 309 

Kan. at 1275. When the record on appeal lacks substantial competent evidence to support 

a district court's classification of a prior conviction or, as in this case, the inclusion of a 

prior conviction in an offender's criminal history, a remand is required to allow the 

district court to determine the propriety of including the prior conviction in the offender's 

criminal history. See State v. Ewing, 310 Kan. 348, 359-60, 446 P.3d 463 (2019); 

Obregon, 309 Kan. at 1275-76.

Although Ewing and Obregon applied these principles to prior out-of-state 

convictions, our court has also applied them to the classification of prior Kansas 

convictions. See State v. Louis, 59 Kan. App. 2d 14, 26, 476 P.3d 837 (2020) 

(considering prior criminal threat conviction), rev. denied 313 Kan. 1044 (2021).

Recognizing the insufficiency of the PSI, the State added copies of the amended 

complaint and plea agreement to the record on appeal to prove that the prior criminal 

threat conviction was based on intentional, rather than reckless conduct. However, 

because these documents were not submitted to the trial court, they do not qualify as part 

of the "entire record" which can be added to the appellate record. See Supreme Court 

Rule 3.01(a) (2021 Kan. S. Ct. R. 19) ("The entire record consists of: (1) all original 

papers and exhibits filed in the district court . . . ."); see also State v. Brownlee, 302 Kan. 

491, 505, 354 P.3d 525 (2015) (documents added to the record on appeal may not be 

considered because they did not qualify as part of the "'entire record'" eligible for addition 

to the record). Here, as in Brownlee, the documents added to the record on appeal were 

not among the original papers filed in the district court and, thus, do not qualify as part of 

the entire record.

Because Munoz' PSI report is lacking the critical information of whether he was 

convicted of a reckless or intentional criminal threat, the prior conviction was not proven 
29

by substantial competent evidence. Accordingly, the sentences are vacated, and the case 

is remanded for resentencing. At resentencing, the State will have the burden to prove 

Munoz' criminal history by a preponderance of the evidence. See K.S.A. 2020 Supp. 21-

6814; Obregon, 309 Kan. at 1275-76.

Finally, in one paragraph at the conclusion of this issue, Munoz adds that the trial 

court should also have excluded his 2017 conviction for a Kansas Offender Registration 

Act (KORA) violation from consideration at sentencing. Munoz claims he was only 

required to register as a violent offender because of the criminal threat conviction, so if 

the criminal threat conviction is not included for sentencing purposes under K.S.A. 2020 

Supp. 21-6810(d)(9) then the same should hold true for his KORA conviction.

The record, however, refutes Munoz' assertion that he was only subject to KORA

because of his 2009 criminal threat conviction. One of the grounds he asserted in the 

district court in support of his motion for a sentencing departure was that his criminal 

history overstated his actual criminal record, in part because his "obligation to register 

stems from a juvenile case that is approximately 15 1/2 years old."

While it may be true that Munoz' 2009 criminal threat conviction required him to 

register as a violent offender, the record which includes his sentencing motion states that 

he was already subject to KORA requirements for a prior adjudication. That said, Munoz 

also provides no authority for his assertion that K.S.A. 2020 Supp. 21-6810(d)(9) should 

require exclusion of his KORA violation conviction. See Salary, 309 Kan. at 481 (issues 

not adequately briefed are considered waived or abandoned). This related claim is 

without merit.
30

ORDER TO PAY BIDS ATTORNEY FEES

At sentencing, the trial court ordered Munoz to pay $8,625 in BIDS attorney fees 

upon his release from prison and while on post-release supervision. Munoz argues for the 

first time on appeal that the trial court erred because it did not consider his financial 

resources and the nature of the burden that paying attorney fees would impose under 

K.S.A. 22-4513. The State concedes the trial court did not explicitly comply with the 

statutory requirement and agrees that the appropriate remedy is to vacate that portion of 

the sentence and remand for reconsideration.

Kansas appellate courts will consider a challenge to the imposition of BIDS fees 

for the first time on appeal despite a defendant's failure to object below. See State v. 

Robinson, 281 Kan. 538, 543-44, 132 P.3d 934 (2006) ("There is no indication . . . that 

the defendant must first object to the proposed BIDS fees to draw the sentencing court's 

attention to those circumstances."). Evaluating a trial court's compliance with K.S.A. 22-

4513 requires statutory interpretation, which presents a question of law subject to 

unlimited review. State v. Garcia-Garcia, 309 Kan. 801, 824, 441 P.3d 52 (2019).

K.S.A. 22-4513 governs the imposition of BIDS fees. Subsection (b) provides 

"[i]n determining the amount and method of payment of [BIDS fees], the court shall take 

account of the financial resources of the defendant and the nature of the burden that 

payment of such sum will impose." K.S.A. 22-4513(b). In Garcia-Garcia, the Kansas 

Supreme Court recently reaffirmed prior holdings that this statute imposes a mandatory 

duty on the trial court to consider the defendant's financial resources and the burden the 

payment would impose "on the record at the time of assessment." 309 Kan. at 824; see 

also State v. Drayton, 285 Kan. 689, 716-18, 175 P.3d 861 (2008) (reversing order to pay 

BIDS attorney fees of $7,110, when court essentially found the defendant would be 

unable to pay because he would be imprisoned for 25 years).
31

As in Drayton, the trial court acknowledged that Munoz lacked the financial 

resources to pay the full amount of the BIDS attorney fees because of his lengthy 

incarceration, and, as a result, deferred payment until after his release from prison. Yet, 

the trial court failed to explain on the record how the statutory factors weighed in its 

decision to impose the full amount of BIDS attorney fees. Accordingly, we vacate the 

BIDS attorney fees assessment and remand for reconsideration under K.S.A. 22-4513(b).

CONSTITUTIONALITY OF CONSIDERING PRIOR CONVICTIONS AT SENTENCING

Finally, Munoz asserts for the first time on appeal that the trial court violated his 

rights under section 5 of the Kansas Constitution Bill of Rights by relying on judicial 

fact-finding of prior convictions at sentencing.

As Munoz acknowledges, our Supreme Court has consistently rejected this claim 

with regard to the United States Constitution based on the Supreme Court's decision in 

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) 

("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."); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).

Munoz asserts for the first time on appeal that the jury trial right guaranteed under 

section 5 of the Kansas Constitution Bill of Rights provides greater protection than the 

jury trial right under the Sixth Amendment to the United States Constitution. According 

to Munoz, the Kansas Constitution preserves a common law right to a jury trial on 

penalty-enhancing prior conviction findings that existed pre-statehood and therefore the 

KSGA—which allows judicial finding of prior convictions—violates section 5.

While this appeal was pending, the Kansas Supreme Court definitively rejected 

this state constitutional claim:
32

"Section 5 of the Kansas Constitution Bill of Rights does not guarantee 

defendants the right to have a jury determine the existence of sentence-enhancing prior 

convictions under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 

Supp. 21-6801 et seq.; no authority substantiates that defendants had such a jury trial 

right at common law when our state Constitution was adopted." State v. Albano, 313 Kan. 

638, Syl. ¶ 4, 487 P.3d 750 (2021).

Albano is dispositive of this issue. Accordingly, we find that Munoz' constitutional

claim is contrary to our Supreme Court's precedent and is without merit.

Affirmed in part, reversed in part, sentences vacated, and case remanded with 

directions.