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State v. Sasser

Supreme Court of Kansas

March 31, 2017

State of Kansas, Appellee,
v.
Shawn Robert Sasser, Appellant.

         SYLLABUS BY THE COURT

         1. Generally, a party cannot complain on appeal about a claimed error that was invited by that party.

         2. Whether the invited error doctrine applies is a question of law over which this court has unlimited review.

         3. A 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.

         4. In 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.

         5. 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.

         6. Whether a case involves alternative means is typically a matter of statutory construction, which is a question subject to unlimited review.

         7. 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.

         8. 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."

         9. On 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed September 27, 2013.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 affirmed.

          Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Shawn 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.

          Per Curiam

         Shawn 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.

         We 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.

         Factual and Procedural Background

         Sasser 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 stop."

         After 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.

         The 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.

         Sasser 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.

         We granted Sasser's petition for review. Jurisdiction is proper. See K.S.A. 60-2101(b) (review of Court of Appeals decision).

         The Invited Error Doctrine

         Before 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.

         Additional Facts

         In its 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.)

         The 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.)

         Prior 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 appropriate.

         On 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.

         The 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. ...


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