1

NOT DESIGNATED FOR PUBLICATION

No. 121,398

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DALE EUGENE AVILA JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed September 25, 2020. 

Affirmed.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for 

appellee.

Before BRUNS, P.J., WARNER, J., and BURGESS, S.J.

PER CURIAM: Dale Eugene Avila Jr. appeals his convictions for various crimes. He 

asserts the district court erred by denying his request for a mistrial and by not submitting 

his prior convictions to a jury when calculating his criminal history score. Finding no 

error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Avila and his ex-girlfriend, Danielle Mayo, dated for about eight years. They lived 

together during that time, and in 2013, Mayo gave birth to their daughter. But the 
2

relationship did not last. In the fall of 2015, Mayo took their young daughter and moved 

in with her parents and sister. And in December, she applied for and received a temporary 

protection-from-abuse order against Avila. 

Avila grew upset that Mayo had taken their daughter away. Between February and 

July 2016, Avila sent Mayo text and voicemail messages in which he threatened to hurt 

her and her family. The situation escalated on February 25, when a distraught Avila came 

to Mayo's house to see his daughter. When Mayo's mother refused to let him in, Avila 

kicked in the front door and came inside. Mayo's mother tried to overpower him by 

jumping on his back, but Avila threw her aside and threatened her. He made his way to 

Mayo's room where he picked up their daughter, grabbed Mayo by the back of the neck, 

and tried to leave. But when Mayo, her mother, and her sister blocked the front door to 

stop him from leaving, Avila eventually put down his daughter and left. 

Based on this incident and the messages, the State filed 23 charges against Avila: 

1 count each of aggravated burglary, domestic battery, endangering a child, battery, and

criminal damage to property; 2 counts of stalking; 6 counts of violating a protective 

order; and 10 counts of criminal threat. The district court granted Avila's motion for 

acquittal on two counts. The jury then found Avila guilty on nine of the remaining 

counts—aggravated burglary, domestic battery, criminal damage to property, two counts 

of stalking, and four counts of criminal threat. The court sentenced him to a controlling

term of 130 months' imprisonment. Avila appeals.

DISCUSSION

Avila alleges two instances of error. First, he claims the district court abused its 

discretion when it denied his motion for a mistrial. Second, he argues the court violated 

his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when calculating his criminal history score by 
3

relying on prior convictions that had not been submitted to the jury. We find that neither 

allegation constitutes grounds for reversal.

Avila's request for a mistrial stemmed from the State's redirect examination of

Mayo's mother, who was a witness at trial. In response to a line of questioning from 

cross-examination—primarily regarding the State's allegations of criminal threat—the 

prosecutor asked the witness to identify any statements Avila made to his ex-girlfriend in 

the mother's house. During that testimony, the following exchange took place:

"A. [By Mayo's mother:] [Avila] was upset. He was very angry and he said things like, 

'Why would you keep my daughter from me?' And Danielle explained to him, or tried to, 

that, you know, there was a protective order because of prior—

"Q. [By the State:] And we don't—we—

"A. Can't use that.

"Q. I'm asking you about what—the statements that he made inside the house.

"A. Okay. Well—" 

Avila's attorney interrupted the exchange at this point, and a bench conference was 

held in the absence of the jury. During the conference, Avila's attorney stated she was 

concerned that Mayo's mother had been close to violating the court's in-limine order and 

that she might do so again. At the time, however, Avila's counsel stated she was "not 

asking for a mistrial over this," but rather was asking the prosecutor to "take [the witness] 

out in the hallway and caution her again, to not say anything like that again." The 

prosecutor indicated that he had already admonished the witness to steer clear of that line 

of discussion. To avoid drawing further attention to the statement, the court suggested the 

prosecutor resume questioning, and the trial moved forward.

The witness finished her testimony soon thereafter. Despite her previous 

statements, Avila's counsel requested a mistrial at the end of witness' testimony, 
4

indicating Avila believed the State had violated the court's order. The court took the 

matter under advisement and indicated it would review the transcript. 

The next day, after having consulted the transcript, the court ruled the exchange 

did not warrant a mistrial. The court found the witness' reference to something "prior" to 

the protection-from-abuse order did not render the trial unfair. The court reasoned that the 

protection order had been discussed during the course of the trial, and the existence of a 

protection order implied that some conduct had justified the order. And the court found 

that the witness' statement that she "can't use that" similarly did not undermine the 

fairness of the trial. 

Under K.S.A. 22-3423(1)(c), a district court may declare a mistrial when 

"[p]rejudicial conduct . . . makes it impossible to proceed with the trial without injustice 

to either the defendant or the prosecution." Our Kansas Supreme Court has explained that 

district courts engage in a two-step process when deciding whether to declare a mistrial. 

(1) The court must determine whether a fundamental failure occurred in the proceeding; 

if so, (2) the court must assess whether the trial can continue without injustice. State v. 

Ward, 292 Kan. 541, Syl. ¶ 1, 256 P.3d 801 (2011). In some instances, a limiting 

instruction or jury instruction may lessen or cure the prejudice that occurred. But if such 

steps would be ineffective, the court must decide whether the conduct is such that it 

results in injustice—that is, whether the conduct deprived the parties of a fair trial. State 

v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014); Ward, 292 Kan. 541, Syl. ¶ 1.

Both assessments involve the exercise of the district court's discretion. Thus, 

appellate courts review the denial of a motion for a mistrial for an abuse of discretion. 

292 Kan. at 550-51. A court abuses its discretion when no reasonable person would adopt 

the court's decision. 292 Kan. at 550. 
5

Avila contends the statements by Mayo's mother constituted a fundamental failure 

in the proceedings because they suggested that some conduct, which should not be 

disclosed to the jury, gave rise to the temporary protection from abuse order. This could 

have led the jury to convict Avila based on his past conduct. 

The district court's ruling—that the witness' statements did not "make[] it 

impossible to proceed with the trial without injustice" to Avila under K.S.A. 22-

3423(1)(c)—was well within its discretion. Though the district court had ruled the State 

could not elicit testimony about some of Avila's previous actions, the State did not do so. 

The witness' reference to the protection-from-abuse order did not run afoul of the court's 

direction; in fact, evidence of the existence of that protection was necessary to prove the 

State's charge that Avila violated the order. And as the court noted, the existence of that 

order supports an inference that Avila previously committed some act that gave rise to its 

issuance. 

Nor did the witness' use of the word "prior" or her statement that she "can't use 

that [description of Avila's previous action]" so undermine the fairness of the proceedings 

to necessitate a mistrial. A party may refrain from introducing evidence for several 

reasons, such as for strategic purposes or pursuant to a court order. The district court's 

careful consideration of this issue—taking the request for a mistrial under advisement and 

reviewing the transcript—demonstrates that it handled the matter reasonably. Indeed, we 

note that Avila initially believed that the witness' statements could be addressed and 

corrected without a mistrial; this is the very path the court followed. The court did not 

abuse its discretion when it denied Avila's request for a mistrial.

Avila next argues the court violated Apprendi when it relied on his prior 

convictions to calculate his criminal history score because the State failed to prove these 

prior convictions beyond a reasonable doubt to a jury. In Apprendi, the United States 

Supreme Court held that any fact, other than a prior conviction, that increases a 
6

defendant's sentence beyond the maximum statutory penalty must be submitted and 

proved beyond a reasonable doubt to a jury. 530 U.S. at 490. The Kansas Supreme Court 

has held that a district court's use of prior convictions when calculating a criminal history 

score does not violate Apprendi. State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002); see 

also State v. Boysaw, 309 Kan. 526, 543, 439 P.3d 909 (2019) (declining to reconsider 

Ivory).

This court is obligated to follow Kansas Supreme Court precedent unless there is 

some indication that the court is departing from its position. State v. Rodriguez, 305 Kan. 

1139, 1144, 390 P.3d 903 (2017). Avila has not shown the court intends to abandon its

position in Ivory. Absent that indication, the district court did not err by failing to submit 

Avila's prior convictions to a jury when calculating his criminal history score.

Affirmed.