BY THE COURT
Generally, a party cannot complain on appeal about a claimed
error that was invited by that party.
Whether the invited error doctrine applies is a question of
law over which this court has unlimited review.
party's actions in causing the claimed error and the
context in which those actions occurred must be carefully
reviewed in deciding whether to trigger the invited error
doctrine. There is no bright-line rule for its application.
an alternative means case, when a single act may be committed
in more than one way, there must be jury unanimity on guilt
for the single crime charged. But unanimity is not required
as to the means by which the crime was committed as long as
substantial evidence supports each alternative means.
Alternative means error is a jury unanimity error injected
into a trial through the confluence of the instructions given
to the jury and the lack of evidence to support one or more
means of committing the crime as set out in the instructions.
Whether a case involves alternative means is typically a
matter of statutory construction, which is a question subject
to unlimited review.
Whether a witness, expert or layman, is qualified to testify
as to an opinion is to be determined by the trial court in
the exercise of its discretion.
K.S.A. 60-456(a) provides that "[i]f [a] witness is not
testifying as an expert his or her testimony in the form of
opinions or inferences is limited to such opinions or
inferences as the judge finds (a) may be rationally based on
the perception of the witness and (b) are helpful to a
clearer understanding of his or her testimony."
the record in this case, the defendant is not entitled to
reversal of his conviction for felony criminal damage to
property. The district judge did not abuse his discretion in
admitting a lay witness' opinion on the value of damage
to a victim's motorcycle.
of the judgment of the Court of Appeals in an unpublished
opinion filed September 27, 2013. Appeal from Johnson
District Court; Stephen R. Tatum, judge. Opinion filed March
31, 2017. Judgment of the Court of Appeals affirming the
district court is affirmed. Judgment of the district court is
A. Kaul, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
E. Minihan, assistant district attorney, argued the cause,
and Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were with him on the briefs for appellee.
Robert Sasser petitions for review after the Court of Appeals
affirmed his convictions for burglary and felony criminal
damage to property. See State v. Sasser, No. 108,
149, 2013 WL 5422322, at *4 (Kan. App. 2013) (unpublished
opinion). Three issues are presented. First, whether the
invited error doctrine prevents Sasser from challenging the
jury instruction on the elements of burglary. Second, if the
instruction issue can be reached, whether sufficient evidence
supported each alternative means Sasser claims was identified
as a basis for the jury to convict on the burglary count.
And, third, whether a witness gave improper opinion testimony
about the cost to repair a motorcycle because the State later
used that testimony to support the felony conviction for
criminal damage to property.
agree the Court of Appeals erred when it applied the invited
error doctrine under these circumstances, and we affirm the
burglary conviction because sufficient evidence supported
that instruction-assuming it presented alternative means. A
majority of the court holds that Sasser is not entitled to
reversal on the opinion testimony issue.
and Procedural Background
became enraged when his daughter decided to spend her
birthday with his ex-wife (the daughter's mother) and the
ex-wife's friend, Sean Zuber. On the evening of the
birthday, Sasser sent a series of menacing text messages to
his ex-wife over several hours. In them, he referenced
killing her and Zuber, writing such things as: "Shortly
you will be in pieces begging for your life, " "you
will die begging for your life, " and "I have been
waiting for this day and you will for a short time beg me to
sending his last text, Sasser drove to his ex-wife's
apartment. When he arrived, he knocked over her motorcycle
and broke into the apartment. No one was home. While inside,
he damaged a television set. Two neighbors tried to stop him,
but he escaped after threatening one of them with a gun.
State charged Sasser with attempted first-degree murder,
burglary, criminal threat, felony criminal damage to
property, misdemeanor criminal damage to property, and
aggravated assault. The jury could not reach a verdict on the
attempted first-degree murder or aggravated assault charges
but convicted him on the others. He later pleaded guilty to
aggravated assault and a lesser charge of attempted
aggravated assault in lieu of attempted first-degree murder.
The district court sentenced him to imprisonment for 26
months, including 12 months for burglary and 6 months for
felony criminal damage to property as well as a consecutive
term of 6 months in county jail.
appealed the burglary and felony criminal damage convictions.
He argued the State failed to produce sufficient evidence to
convict him on each alternative means of committing burglary
that he claimed were contained in the jury instructions. He
also argued the felony criminal damage to property conviction
rested on improperly admitted lay opinion testimony. The
Court of Appeals affirmed, holding Sasser invited any
alternative means error by requesting the burglary jury
instruction prior to trial and that the district court was
within its discretion to admit the opinion testimony. See
Sasser, 2013 WL 5422322, at *2, 3.
granted Sasser's petition for review. Jurisdiction is
proper. See K.S.A. 60-2101(b) (review of Court of Appeals
Invited Error Doctrine
addressing whether Sasser's burglary conviction must be
reversed because the State failed to produce sufficient
evidence of each alternative means of committing burglary, we
must first decide whether the panel correctly sidestepped the
question by invoking the invited error doctrine. See 2013 WL
5422322, at *2. We hold the panel erred.
complaint, the State's burglary charge alleged:
"That on or about the 3rd day of July, 2011, in the
County of Johnson, State of Kansas, SHAWN ROBERT SASSER, did
then and there unlawfully, willfully, feloniously, knowingly
and without authority enter into a dwelling, to-wit:
apartment of Janet Sasser, with the intent to commit a
felony therein, to-wit: murder, aggravated assault, or
criminal threat . . . ." (Emphasis added.)
trial court instructed the jury that to convict Sasser of
this charge it was required to find:
"1. That the defendant knowingly entered an apartment
which is a dwelling;
"2. That the defendant did so without authority;
"3. That the defendant did so with the intent to
commit first degree murder, aggravated assault or criminal
threat, therein; and
"4. That this act occurred on or about the 3rd day of
July, 2011, in Johnson County Kansas." (Emphasis added.)
to trial, both Sasser and the State requested proposed jury
instructions for the burglary count virtually identical to
the one given at trial. At the jury instructions conference
after the close of evidence, the court and counsel confirmed
the correct listing of the offenses in item three
(first-degree murder, aggravated assault, or criminal
threat). When asked by the court whether any other changes
were required, both sides agreed the instruction was
appeal, Sasser contended the burglary conviction must be
reversed because the State failed to produce sufficient
evidence of each alternative means of committing burglary set
out in the jury instruction. He argued these alternative
means were that he intended "to commit first degree
murder, aggravated assault or criminal threat" inside
his ex-wife's apartment, and that there was no evidence
he intended to commit criminal threat.
panel declined to reach the merits of this argument. In its
view, Sasser invited the error by requesting the jury
instruction before trial and then failing to object to it at
the instructions conference. 2013 WL 5422322, at *2. The
panel noted, "[T]his court previously has applied the
invited error rule to situations involving alternative means,
" and added, "The invited error rule seems
especially appropriate in this instance, where the language
that allegedly creates the alternative means is found only in
the jury instruction, not in the statutory language
itself." 2013 WL 5422322, at *2 (citing State v.