SYLLABUS BY THE COURT 1. The omission of an element of a charged offense from an instruction compromises the defendant's right to trial by jury protected in the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The omission may be treated as harmless when the element is uncontested and supported by overwhelming evidence. 2. A party may not invite or prompt error in a case and then complain of that error as a ground for reversing an adverse judgment. The invited error rule effectively binds trial counsel to strategic decisions inducing judicial rulings with the purpose of obtaining favorable judgments for their clients. The rule also defeats a disreputable strategy aimed at requesting that a judge act in a particular way to salt the record with error as an end in itself, thereby providing potential grounds for reversal of an adverse judgment. 3. Persons may relinquish their constitutional rights if they do so knowingly and voluntarily.
4. Criminal defendants are generally bound by the actions of their lawyers, save for decisions on whether to go to trial, to testify, or to appeal. Selection and phrasing of proposed jury instructions come within those decisions entrusted to lawyers exercising their professional judgment. 5. A trial judge is not bound to give either side's suggested instructions and has an independent duty to fashion a set of instructions that correctly informs the jurors of the relevant law. 6. If the lawyer representing a criminal defendant makes a calculated decision to sacrifice certain constitutionally protected interests of his or her client for tactical advantage in attaining an acquittal and in doing so induces the district court to act or rule in particular ways, then those actions or rulings generally cannot be asserted as points of error on direct appeal of a conviction. To hold otherwise would invite game-playing and manipulation incompatible with a fair adjudicatory process. 7. Even if the invited error rule might be appropriately applied to common trial decisions that unintentionally compromise a given defendant's constitutional rights, it ought to be relaxed for those deficiencies in jury instructions. Absent tactical intent on counsel's part, the shared responsibility for preparing final jury instructions weighs against rigid application of invited error to deflect a constitutional challenge. 8. Under the facts of this case, the court declines to review the omission of contested elements of the charged offense from the jury instructions because the record fails to
show whether the omission resulted from a tactical decision or from inadvertence. But the issue may be raised and, if necessary, a record developed on habeas corpus review. 9. In reviewing a sufficiency challenge in a criminal case, an appellate court construes the evidence in a light most favorable to the party prevailing below and in support of the jury's verdict. The court will neither reweigh the evidence generally nor make credibility determinations specifically. The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. Circumstantial evidence alone may yield a conviction if each element of the offense can be supported. 10. A not guilty verdict on one charge typically creates no legal or practical bar to an appellate court considering the evidence supporting that charge to the extent it also supports another charge of which the defendant has been convicted. 11. Jurors in a criminal case must be convinced the evidence collectively establishes beyond a reasonable doubt the elements the State is required to prove for the charged offense. Particular evidence might be afforded considerable credit in satisfying that standard, while other evidence could be viewed as less reliable but still indicative of guilt, and some could be rejected outright as unworthy of belief. 12. Under the facts of this case, there was sufficient evidence to support the jury's verdict that the defendant committed an overt act toward the commission of an attempted aggravated burglary and that the defendant had the intent to commit a theft upon entering the premises.
The opinion of the court was delivered by: Atcheson, J.:
Appeal from Johnson District Court; JAMES FRANKLIN DAVIS; judge.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
This case presents a confounding question on the scope of the invited error doctrine: Should the doctrine extinguish a criminal defendant's appeal of a conviction when that challenge rests on a constitutional defect arising from actions the defendant's lawyer asked the district court to take? In this case, the lawyer for Defendant Sean Arnell Hargrove requested and the Johnson County District Court gave a jury instruction that omitted substantive and contested elements of the charged offense-an error compromising the constitutional right to trial by jury. On balance, policy considerations and the weight of authority favor applying invited error to bar Hargrove's point in this direct appeal because the record fails to establish whether the request was tactical or inadvertent. We come to that conclusion with the understanding that Hargrove ought to be able to secure judicial review of the lawyer's actions in a motion for habeas corpus relief.
On appeal, Hargrove also contends the State failed to present sufficient evidence to support his conviction for attempted aggravated burglary. The record evidence, though something less than overwhelming, furnishes a legally adequate basis for the verdict. We, therefore, affirm Hargrove's conviction.
FACTS AND PROCEDURAL HISTORY
After a late morning workout on April 26, 2010, John Geither was showering at his home on a relatively secluded residential street in Shawnee when the doorbell rang about 10 times. Geither toweled off, set the home's alarm system, and looked out an upstairs front window. He saw a stranger walking away from the front door toward a car parked on the street. The stranger turned out to be Hargrove. Geither assumed the individual was leaving, so he finished getting ready for his day.
Almost immediately, Geither heard the doorbell ring again and the front door handle turn. He called 911 to report a possible break-in. While Geither was on the phone with the 911 dispatcher, he heard pounding or thumping sounds at the side of the house near the telephone and security alarm box. Geither remained on the line with the dispatcher.
Shawnee Police Sergeant Ben Mendoza arrived about 8 minutes after Geither placed the call. Officer Thomas Rhomberg got there at almost the same time. Mendoza saw Hargrove getting into a sedan, so he pulled up and activated the emergency lights on his patrol car. Rhomberg then positioned his patrol car to block Hargrove's vehicle. After doing so, Rhomberg spoke with Hargrove. Hargrove said he did not know who lived in the house but had stopped to ask for directions. Rhomberg looked in the sedan and saw a pair of white cotton gloves and a Phillip's-head screwdriver. At some point, the officers formally arrested Hargrove, although the trial transcript is less than clear as to when.
Rhomberg walked around Geither's house and saw the telephone box had been pulled away from the outside wall, the mounting brackets broken, and several wires jerked loose. He also noticed a partial shoeprint in the dirt beneath the telephone box. The shoeprint was preserved and later compared to Hargrove's footwear. At trial, a forensic examiner from the Kansas Bureau of Investigation testified the shoeprint was consistent with Hargrove's boots in terms of size and general characteristics. But the examiner told the jury the print lacked sufficient detail to conclude it matched Hargrove's boots.
Rhomberg also saw pry marks on a sliding glass door at the rear of Geither's house. He then unsuccessfully looked for a tool that could have been used to make the marks. At trial, a detective testified that the screwdriver found in Hargrove's car was inconsistent with the pry marks and was not used to jimmy the door.
Geither testified that neither the telephone box nor the back door had any damage the day before he saw Hargrove and called the police.
A Shawnee detective interviewed Hargrove at the police station. Hargrove told the detective he lived in Kansas City, Missouri, and had a job interview at a warehouse there. But he could not remember the name of the company. Hargrove explained that he drove to the Kansas side for another job interview, although he could not remember the name of that company either. The trial evidence showed that the corporate offices of Deffenbaugh Disposal Services, a business that has a large unskilled workforce, is in the general vicinity of Geither's home. Hargrove repeated that he had become lost in the residential area and went to Geither's house to get directions. In response to the detective's questions, Hargrove acknowledged he saw nothing indicating anyone might be in Geither's house, such as a car in the driveway. He also agreed he had not gone to the neighboring house in search of directions after getting no response at Geither's home. Hargrove explained to the detective that he had decided he could find his way out of the residential area. Hargrove told the detective he had stopped for about 3 minutes and did not go to the side or back of Geither's house.
The State charged Hargrove with one count of attempted aggravated burglary, in violation of K.S.A. 31-3301 and K.S.A. 21-3716, and misdemeanor criminal damage to property, in violation of K.S.A. 21-3720. At trial, the prosecutor presented Hargrove's statements to the detective as part of the State's case. Mendoza and Rhomberg recounted the circumstances of their encounter with Hargrove. Both testified that Hargrove did not ask them for directions when they first approached him. Hargrove chose not to testify and presented no evidence.
The district court gave the following instruction to the jury as setting forth the elements of attempted aggravated burglary:
"The defendant is charged in count I with the crime of an attempt to commit aggravated burglary. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant performed an overt act toward the commission of the crime of aggravated burglary;
2. That the defendant did so with the intent to commit the crime of aggravated burglary;
3. That the defendant failed to complete commission of the crime of aggravated burglary; and
4. That this act occurred on or about the 26th day of April, 2010, in Johnson County, Kansas.
"An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act.
"The elements of the completed crime of aggravated burglary are as follows:
1. That the defendant knowingly entered or remained in a residence;
2. That the defendant did so without authority;
3. That the defendant did so with the intent to commit a theft;
4. That at the time there was a human being in the residence; and
5. That this act occurred on or about the 26th day of April, 2010, in Johnson County, Kansas."
The State requested an instruction that substantively matched the one the district court used. So did Hargrove. The instruction Hargrove requested had slightly different introductory wording, but the operative legal language was identical. The proposed instructions and the instruction given the jury omitted the elements of theft.
The jury convicted Hargrove of attempted aggravated burglary and acquitted him of criminal damage to property. Based on his extensive criminal history, Hargrove faced presumptive imprisonment. The district court imposed an aggravated guidelines sentence of 31 months in prison on Hargrove. Hargrove has timely appealed on grounds that the jury instruction on attempted aggravated burglary omitted essential elements of the offense, thereby depriving him of a fair trial, and that the evidence failed to support the jury's verdict of guilty on that charge.
INVITED ERROR SUPPLANTS CONSTITUTIONAL DEFECT IN JURY INSTRUCTION
For his first issue on appeal, Hargrove submits the jury instruction on attempted aggravated burglary omitted contested elements of the offense, creating a constitutional error infecting his right to jury trial. He correctly assesses the problem with the instruction-the elements of theft are missing. But Hargrove, through his counsel, invited the error because he requested the deficient instruction. The procedural posture of this case creates a tension between remedying a trial mistake eroding a criminal defendant's fundamental rights and enforcing the invited error doctrine preventing a party from crying foul based on his or her deliberate manipulation of that trial process. We have found no controlling authority from either the United States Supreme Court or the Kansas Supreme Court directly addressing and resolving the tension. There may not be a single rule suited to the task. We do not endeavor to fashion one applicable to every situation. Rather, we draw from the available precedent and reach a conclusion tailored to the factual circumstances of this case.
In managing that task, we first look at the nature of the instructional flaw and how it ordinarily would be evaluated in the absence of invited error. We then consider the scope and purpose of the invited error doctrine. Those efforts follow settled paths in the law. Given the gravity of the insult to Hargrove's constitutional rights, the task of reconciling them does not.
The reconciliation we reach in this direct appeal properly elevates the invitation of the error to preeminence notwithstanding the undeniable significance of the right compromised through the error. To do otherwise here would permit Hargrove to attack his conviction based on a mistake of the district court that his lawyer plainly helped induce, perhaps with a deliberate tactical purpose. The record on appeal sheds no light on why Hargrove's lawyer asked for a truncated instruction leaving out elements of attempted aggravated burglary. If the decision were one of colorable trial strategy, then Hargrove should be denied relief. Parties ought not be permitted to speculate on strategic decisions that ...