BY THE COURT
appellate jurisdiction exists is a question of law over which
an appellate court has unlimited review.
interpretation is subject to unlimited appellate review.
appellate jurisdiction question may be raised at any time and
may also be raised sua sponte by a court.
contemporaneous objection rule under K.S.A. 60-404 is not
satisfied by objecting to the introduction of evidence on one
ground at trial and arguing another ground on appeal.
2017 Supp. 60-455 governs the admissibility of other crimes
evidence. Generally, evidence a person committed a crime or
civil wrong on a prior specified occasion is inadmissible to
prove that person's disposition to commit crimes or civil
wrongs as a basis for an inference that the person committed
another crime or civil wrong on another specified occasion,
unless such evidence is admissible as relevant to prove some
other material fact, such as motive.
determine prosecutorial error, an appellate court decides
whether the act complained of falls outside the wide latitude
afforded to prosecutors to conduct the State's case in a
way that does not offend the defendant's constitutional
right to a fair trial. If it finds error, the appellate court
next determines if that error prejudiced the defendant's
right to a fair trial.
evaluating the prejudice step for reversible prosecutorial
error, an appellate court applies the traditional
constitutional harmlessness inquiry from Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967). Prosecutorial error during a trial is harmless if
the State shows beyond a reasonable doubt the error did not
affect the trial's outcome in light of the entire record,
i.e., there is no reasonable possibility the error
contributed to the verdict. 8.
sentencing court assessing fees to reimburse the Board of
Indigents' Defense Services under K.S.A. 22-4513 must
consider on the record at the time of assessment the
defendant's financial resources and the burden that
paying the fees will impose.
from Montgomery District Court; Jeffrey D. Gossard, judge.
Clayton J. Perkins, of Capital Appellate Defender Office,
argued the cause and was on the brief for appellant.
J. Obermeier, assistant solicitor general, argued the cause,
and Derek Schmidt, attorney general, was with him on the
brief for appellee.
opinion of the court was delivered by
convicted Alejandro Garcia-Garcia of attempted capital
murder, kidnapping, burglary, and interference with law
enforcement. His Kansas crimes arose from a high-speed car
chase that began in Oklahoma. In this direct appeal,
Garcia-Garcia raises four issues: (1) the relevancy and undue
prejudice of evidence about his criminal acts in Oklahoma,
(2) prosecutorial error, (3) jury instruction error, and (4)
the court's order that he pay a percentage of the
attorney fees incurred for his defense. Before discussing
these, we first consider an appellate jurisdiction question
raised sua sponte and hold jurisdiction is proper. We affirm
the convictions, vacate the attorney fees assessment, and
remand to the district court with directions to reconsider
and Procedural Background
appeal can be broken down into three separate but related
incidents. We briefly describe them now and will provide more
detail when addressing the applicable issue.
high-speed chase in Oklahoma
began when an Oklahoma police officer pulled Garcia-Garcia
over for speeding. He had two passengers in his vehicle-one
in the front seat and another in the back. Garcia-Garcia gave
the officer his ID, which was invalid. Another officer
arrived as backup. An officer instructed Garcia-Garcia to
turn off the vehicle's engine, but he refused and drove
away. The officers pursued in their respective patrol cars.
During the chase, gunshots were fired from a rear window of
Garcia-Garcia's vehicle. An officer was shot in the
forehead and his car crashed. He survived his injuries.
enforcement officers ended the vehicle chase by deploying
stop strips near the Kansas border. Garcia-Garcia fled on
foot. He saw Stanley Shafer Jr. standing by a truck outside a
house. Shafer agreed to give him a ride. While in the truck,
Garcia-Garcia showed Shafer a gun and gestured with it to
continue driving beyond where Shafer had initially intended
to take him. Shafer later testified he was scared and felt he
had no choice. Shafer saw a friend fishing at a bridge and
stopped to talk with him. Shafer took the keys with him so
Garcia-Garcia could not drive away.
attempted capital murder
at the bridge, Garcia-Garcia flagged down another truck
driven by David Henderson, who agreed to take him to Liberty,
Kansas. As they drove, Garcia-Garcia asked Henderson to drive
to Garnett. Henderson declined, refusing Garcia-Garcia's
offer to pay him $500. They saw a sheriff's car as they
approached Liberty. Garcia-Garcia ducked down when they
passed and asked Henderson what the sheriff's car was
doing. Henderson said it turned around and was following
them. When Henderson stopped, Deputy Michael Grimes pulled up
about 90 feet behind Henderson's vehicle.
stories conflict about what happened next. Henderson heard
Grimes say, "Let me see your hands." He turned and
put his hands out the window. By that time, Garcia-Garcia was
outside the truck, holding a gun. Henderson heard gunshots
and then blacked out when Grimes shot him in the neck.
testified Garcia-Garcia fired first, so he returned fire.
Grimes was in front of his patrol car. Realizing he had no
cover, he tried to run backwards to his car but tripped and
fell. Grimes said Garcia-Garcia continued shooting after he
fell. When Grimes returned to his car, he saw Garcia-Garcia
later police interview, Garcia-Garcia said Grimes shot first.
He told investigators he accidentally fired one shot toward
the truck's rear. He repeatedly said he only fired once
but agreed it was possible he fired more because he was
scared. He said after he fired his single shot, he saw Grimes
fall to the ground. He then ran to a nearby house. He was
found inside in a closet, hiding under some clothes.
trial, a KBI agent testified about the physical evidence. The
agent said investigators found four bullet casings matching
Garcia-Garcia's pistol. The agent noted their location
corroborated Garcia-Garcia's claim he fired a shot toward
the truck's back. He also testified the physical evidence
could not determine what order any particular shot was fired.
Likewise, he noted both civilians and law enforcement are bad
at estimating the number of shots fired in high stress
found Garcia-Garcia guilty of attempted capital murder of
Grimes, kidnapping Shafer, burglary, and interference with
law enforcement. The district court imposed a hard 25 life
sentence for the attempted capital murder conviction with
consecutive presumptive sentences for the remaining
convictions. Garcia-Garcia now brings this direct appeal.
capital murder is an off-grid offense. K.S.A. 2015 Supp.
21-5401(c). Conviction requires a hard 25 life sentence.
K.S.A. 2015 Supp. 21-6620(a)(2)(A). This court has direct
appellate jurisdiction over convictions of all life sentence
and off-grid offenses, except those under Jessica's Law.
K.S.A. 2016 Supp. 22-3601(b)(3), (4).
Garcia-Garcia filed his notice of appeal, stating:
"Defendant hereby appeals to the Kansas Court of
Appeals in the above referenced case." (Emphasis
added.) We ordered Garcia-Garcia to show cause how his notice
of appeal conferred appellate jurisdiction and suggested his
notice was potentially defective because a notice of appeal
" shall designate the judgment or part thereof
appealed from, and  shall name the appellate
court to which the appeal is taken." (Emphases
added.) K.S.A. 2017 Supp. 60-2103(b).
responded that his notice should be considered
jurisdictionally sufficient, citing State v. Boyd,
268 Kan. 600, 607, 999 P.2d 265 (2000) (holding notice of
appeal sufficient to give Court of Appeals jurisdiction by
stating defendant "'appeals from his conviction in
the above captioned matter'"). He claimed the notice
made clear he was appealing from his criminal conviction
although he did not mention it. He reasoned the State would
be no more prejudiced by his notice than by one with generic
language because the State would learn the issues on appeal
by reviewing his brief.
incorrectly naming the court to which his appeal is taken, he
argued naming the Court of Appeals instead of the Supreme
Court should also not be a jurisdictional defect, citing
State v. Laurel, 299 Kan. 668, 325 P.3d 1154 (2014).
But in Laurel, the court held a notice of appeal
incorrectly directed to the Court of Appeals presented no
jurisdictional obstacle unless the State was misled or
disadvantaged by the error. 299 Kan. at 675. That is not
explained he first docketed his case with the Court of
Appeals because he considered K.S.A. 2016 Supp. 22-3601(b)
ambiguous on which appellate court had jurisdiction. He also
believed his case could be transferred to this court since
his conviction of attempted capital murder was an off-grid
felony carrying a hard 25 life sentence. See K.S.A. 2016
Supp. 22-3601(b)(3) (direct appeal when "a maximum
sentence of life imprisonment has been imposed"); K.S.A.
2016 Supp. 22-3601(b)(4) (direct appeal when "the
defendant has been convicted of an off-grid crime").
further suggested 2016 Supp. 22-3601(b)(4), not subsection
(3), might control because his conviction "was a
post-1993 conviction of an attempt of an off-grid
crime," citing State v. Cameron, 294 Kan. 884,
899, 281 P.3d 143 (2012). He pointed out that if subsection
(b)(4) applied, it "would appear to exclude a conviction
of attempted capital murder as a crime subject to this
Court's direct review" because of subsection
(b)(4)(G) ("The provisions of this paragraph shall not
apply to any case in which the off-grid crime was . . . an
attempt . . . of any such felony." [Emphasis
ordered additional briefing to address "whether
appellate jurisdiction arises under K.S.A. 2016 Supp.
22-3601(b)(3) or K.S.A. 2016 Supp. 22-3601(b)(4)(G)."
appellate jurisdiction exists is a question of law over which
this court has unlimited review. State v. Looney,
299 Kan. 903, 906, 327 P.3d 425 (2014). To the extent the
court's inquiry requires statutory ...