State v. Fleming

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,549

STATE OF KANSAS,
Appellee,

v.

WILLIE FLEMING,
Appellant.

SYLLABUS BY THE COURT

1.
K.S.A. 22-3414(3) does not preclude application of the invited-error doctrine.

2.
In a criminal case, the invited-error doctrine may apply when a lawyer submits a
pretrial instruction on the elements of an offense that defines the offense more
expansively than it is charged by the State.

3.
Raising constitutional issues does not preclude application of the invited-error
doctrine.

4.
An appellant's actions in causing an alleged error and the context in which those
actions occurred must be carefully reviewed in deciding whether to apply the invited-
error doctrine. There is no bright-line rule for its application. And under the
circumstances of this case, it applies.

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 Review of the judgment of the Court of Appeals in an unpublished opinion filed July 22, 2016.
Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed August 10, 2018. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs 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 brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: In this appeal, Willie Fleming questions whether the invited-error
doctrine automatically applies when a party requests a jury instruction at trial but claims
error on appeal. We consider the rationale underlying the invited-error doctrine, how the
doctrine has been applied in Kansas cases involving asserted jury instruction error,
whether K.S.A. 22-3414(3) precludes the doctrine's application, and whether the doctrine
should be applied here. We hold the invited-error doctrine does not automatically apply
every time a party requests an instruction at trial but then, on appeal, claims the district
court erred by giving it. Instead, appellate courts must engage in a searching analysis of
the facts of the case to determine whether the complaining party truly invited the error.
Under the circumstances of this case, we apply the doctrine and do not review the merits
of Fleming's claim of jury instruction error.

FACTS AND PROCEDURAL HISTORY

The State charged Fleming with theft, aggravated robbery, and aggravated
burglary after an investigation revealed evidence that he and others broke into a residence
at night and took property. The noise they made while entering the residence startled
Carrington Dean and Quintez Secka, who had been asleep in separate upstairs bedrooms.
2
Dean was a guest who was sleeping over that night, and Secka was a resident. Other
residents were not home at the time.

The State presented evidence at trial establishing that Fleming and another man
entered the room where Dean had been sleeping. According to this evidence, Fleming hit
Dean in the head with a gun and demanded, "Where's the money, where's the weed,
where's the safe[?]" When Dean told them he did not know what they were talking about,
the men searched the upstairs rooms. Meanwhile, Secka hid from sight. When the men
left the house, Dean realized his cell phone and wallet, which had been in the room with
him, had been taken. Eventually, the residents of the home realized the burglars had taken
property from other rooms.

In charging Fleming with aggravated robbery, the State specified that Fleming had
taken a cell phone and a wallet from the person or presence of Dean. In charging theft,
the State alleged he took a television, a PlayStation, a laptop computer, and watches. A
jury acquitted Fleming of theft but convicted him of aggravated robbery and aggravated
burglary.

Fleming appealed to the Court of Appeals, raising three issues: (1) Did the district
court err in instructing the jury on aggravated robbery by saying that the State had to
prove Fleming "took property from the person or presence of the" victim without
specifying that the State had alleged the stolen property was a cell phone and a wallet?
(2) Did the district court err in failing to give a jury instruction on sympathy and
prejudice? and (3) Did the district court err in increasing his sentence based on his
criminal history in violation of his Sixth and Fourteenth Amendment rights?

The Court of Appeals panel held Fleming had not preserved the first issue because
he invited the error and he failed to establish the merits of his arguments on the second
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and third issues. One member of the panel, Judge Steve Leben, concurred on the first
issue. On that issue, the panel disagreed about whether the invited-error doctrine applied.
But the panel unanimously agreed, although for different reasons, that Fleming's
convictions and sentences should be affirmed. State v. Fleming, No. 112,549, 2016 WL
3960159 (Kan. App. 2016) (unpublished opinion).

Fleming sought our review of the Court of Appeals decision. We granted review
of the first issue only—the alleged error in instructing on aggravated robbery. This means
we will not discuss the Court of Appeals' analysis of the other two issues. See Supreme
Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 53). Some additional details help explain
Fleming's arguments related to the first issue.

On appeal, Fleming challenged the aggravated robbery jury instruction as being
broader than the charge set out in the complaint against him. The complaint alleged:

"COUNT 1- That on or about the 12th day of December, 2012, in the City of Overland
Park, County of Johnson and State of Kansas, WILLIE DEMARIO FLEMING, did then
and there unlawfully, feloniously and knowingly take property, to-wit: cell phone, wallet
from the person or presence of another, to-wit: Carrington Dean, by force or by threat of
bodily harm to the person of Carrington Dean, while armed with a dangerous weapon, to-
wit: handgun, and did inflict bodily harm upon Carrington in the course of such robbery,
a severity level 3 person felony, in violation of K.S.A. 21-5420, K.S.A. 21-6804 and
K.S.A. 21-6807 (aggravated robbery)." (Emphasis added to highlight the language
Fleming relies upon.)

Fleming's counsel proposed an instruction based on the pattern instruction on
aggravated robbery. Fleming's proposed instruction changed the charged language of
"property: to wit: cell phone, wallet from the person or presence of another" to "property
from the presence of Carrington Dean." In full, Fleming's proposed instruction read:

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 "The defendant is charged in Count I with aggravated robbery. The defendant
pleads not guilty.

"To establish this charge, each of the following claims must be proved:
"1. The defendant knowingly took property from the presence of Carrington
Dean.
"2. The taking was by threat of bodily harm to Carrington Dean.
"3. The defendant inflicted bodily harm upon Carrington Dean.
"4. This act occurred on or about the 12th day of December, 2012, in Johnson
County Kansas." (Emphasis added to language at issue).

The State proposed similar language, stating it had to prove that Fleming knowingly
"took property from the person or presence of Carrington Dean."

Thus, both Fleming's and the State's proposed instructions deviated from the
language in the complaint by referring to the taking of "property" without specifying that
the State had alleged Fleming took a cell phone and wallet. Fleming's proposed
instruction also deviated from the language in the complaint by proposing use of the
phrase "from the presence" of Dean rather than the complaint's language of "from the
person or presence." The State's proposed instruction stayed true to the complaint on that
point, stating "person or presence."

The district court, in preparing a proposed jury instruction, used the language both
Fleming and the State had proposed regarding use of "property"—it did not describe the
property. The court then used the complaint's language (and the language in the State's
proposed instruction) of "person or presence." In full, the sentence in the proposed
instruction read: "1. The defendant knowingly took property from the person or presence
of Carrington Dean." Fleming concedes his counsel did not object to the proposed

5
instruction or point out its deviation from the complaint. The district court then instructed
the jury using that language.

Although Fleming did not complain on appeal about the phrase "person or
presence," the Court of Appeals addressed that phrase. It held "taking from the
presence"—the language Fleming had proposed—is a broader concept than "taking from
a person." Thus, the panel concluded "it is clear the district court's instruction did not
expand Fleming's proposed instruction." 2016 WL 3960159, at *3. Fleming did not argue
against this conclusion in his petition for review and has thus waived any objection to
that wording. See Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54) ("The court
will not consider issues not presented or fairly included in the petition" for review); see
also State v. Perry, 303 Kan. 1053, 1054, 370 P.3d 754 (2016) (applying rule).

The panel next turned to the specific language Fleming challenged: "took
property." Fleming argued to the panel, and to us, that the failure to specify the
property—the cell phone and the wallet—allowed the jury to consider all the property
taken from other parts of the house where he was not present. Thus, he argued, the
instruction impermissibly broadened the charge brought against Fleming. Factually,
Fleming's argument loses some, but not all, of its steam because the jury acquitted
Fleming on the charge of theft relating to a television, a PlayStation, a laptop computer,
and watches. But the State also presented evidence of the theft of keys, a purse, clothing,
jewelry, and other items. So, factually, there remains property the jury could have
potentially considered.

In response, the State raised several legal questions about the effect of variances,
especially relating to factual allegations—an issue it argued this court has never settled.
Citing caselaw about variances from other jurisdictions, the State argued no error
occurred. But the State also argued Fleming could not raise the issue because he invited
6
the error. Fleming responded, raising four reasons the Court of Appeals should not treat
the issue as an invited error.

Ultimately, the panel accepted the State's invited-error argument. It stated: "[A]ny
error was invited by Fleming when he proposed an aggravated robbery instruction that
required the jury to find that property had been taken from the presence of Dean" rather
than proposing an instruction that listed the cell phone and the wallet as the property
alleged to have been taken. 2016 WL 3960159, at *3.

Judge Leben concurred in the result. He questioned whether application of the
invited-error doctrine was mandatory or permissive, suggesting it could be permissive.
2016 WL 3960159, at *5-6. He argued against application of the invited-error doctrine in
cases involving jury-instruction error. He first noted that K.S.A. 22-3414(3) already
imposes a high burden on a defendant seeking reversal based on a jury instruction error if
the defendant did not object to the instruction at trial. In addition, he concluded "the
statute seems to imply that a party may raise ('assign as error') an instruction-error issue
where the instruction given or the failure to give an instruction is 'clearly erroneous,'
without respect to any invitation of error." 2016 WL 3960159, at *5. This indicates, he
suggests, that the interests of justice may weigh against applying invited error to preclude
review when a defendant meets the high burden of establishing clear error. Nevertheless,
he determined it was unnecessary to resolve the issue in Fleming's case because, even if
the merits were considered, Fleming could not establish clear error. Based on the
evidence and argument presented, Judge Leben concluded it was "highly unlikely that the
jury was confused by any error that may have been made in the aggravated robbery
instruction." 2016 WL 3960159, at *7.

7
 ANALYSIS

Before the Court of Appeals and us, Fleming presents four reasons the invited-
error doctrine should not apply. We have reordered those arguments for purpose of our
discussion. First, he asks us to determine that the Legislature expressed its intent through
K.S.A. 22-3414(3) to allow review of all claims of error related to a jury instruction.
Under this statute, he argues, an appellate court must consider all unobjected-to jury
instruction claims—even those invited—under the clear-error test imposed by that
statute. Second, he argues he could not have invited the error because the instructions
were filed before trial and thus before he knew what evidence the State would admit at
trial. Third, he argues the Court of Appeals should have, and now this court should,
review his claim of error because it involves a denial of constitutional due process and
the constitutional right to a jury trial. Finally, he argues we should adopt the test set out in
State v. Hargrove, 48 Kan. App. 2d 522, 547, 293 P.3d 787 (2013), which requires a
court to balance "individual fairness of the person standing as the accused and
institutional fairness of the system as an adjudicatory process" before refusing to consider
an issue because the accused had invited the action. He argues this approach is much like
that proposed by Judge Leben.

Before we discuss these arguments, we need to consider our standard of review.
Fleming's core issue relates to an alleged jury instruction error, which appellate courts
analyze through a multistep process. State v. Plummer, 295 Kan. 156, 160-63, 283 P.3d
202 (2012). Here, the Court of Appeals majority ended its analysis at the first step. In that
step, appellate courts focus on reviewability—a concept that includes jurisdiction and
"certain prudential rules of preservation." 295 Kan. at 160-61. Traditionally, we have
stated that the prudential preservation rule applied by the Court of Appeals—the invited-
error doctrine—raises a question of law over which appellate courts exercise unlimited
review. State v. Sasser, 305 Kan. 1231, 1235, 391 P.3d 698 (2017).
8
 Judge Leben's concurring opinion can be read to suggest the Court of Appeals had
discretion to apply the invited-error doctrine. 2016 WL 3960159, at *5 ("[A]ppellate
courts may apply the invited-error doctrine" and "there are potential reasons we may not
want to apply the invited-error doctrine to a claim of jury-instruction error."). If so, it
would follow that this court should review the Court of Appeals decision to determine
whether it abused its discretion by applying the doctrine. Before us, the parties' briefing
did not discuss whether we should continue to apply the traditional de novo review
standard. While we asked the attorneys at oral argument whether we should revisit the
standard of review, we are reluctant to resolve that question without the benefit of full
briefing. And we need not resolve the question here because Fleming presents legal
questions about the applicability of the invited-error doctrine and argues the Court of
Appeals applied the wrong law. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801
(2011) (Judicial discretion is abused if "judicial action: (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.").

A brief description of the invited-error doctrine and its roots also helps explain our
discussion. Essentially, under the doctrine, "[i]t is fundamental that a litigant who invites
and leads a trial court into error will not be heard on appeal to complain of that action."
State v. Carter, 220 Kan. 16, Syl. ¶ 1, 551 P.2d 821 (1976); see State v. Parks, 308 Kan.
39, 42-43, 417 P.3d 1070 (2018) ("Generally, a defendant cannot complain on appeal
about a claimed error that was invited.") (quoting Sasser, 305 Kan. at 1235; Gilliland v.
Kansas Soya Products Co., 189 Kan. 446, 451-52, 370 P.2d 78 [1962]; Mercer v.
McPherson, 70 Kan. 617, 619, 79 P. 118 [1905]). As this suggests, the principle that
9
underlies the doctrine is that a party cannot ask a court to take a specific action and then
later ask for the judgment to be reversed because the court complied with the request.
State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).

Some cases and commentators suggest the doctrine may have its origins in
equitable principles that do not countenance a party manipulating the system to create
grounds for appeal. See United States v. Well, 519 U.S. 482, 487-89, 117 S. Ct. 921, 137
L. Ed. 2d 107 (1997) (expressing reluctance to consider an issue if doing so would
"excuse inattention or reward cunning"). Some jurisdictions ground the doctrine in
estoppel. See People v. Hernandez, 111 Cal. App. 4th 582, 588, 3 Cal. Rptr. 3d 586
(2003) ("'[T]he doctrine of invited error operates to estop a party from asserting an error
when the party's own conduct has induced its commission, and from claiming to have
been denied a fair trial by circumstances of the party's own making.' [Citations
omitted.]"); Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (applying
invited-error doctrine to jury instructions in capital murder case and stating that "[t]he
doctrine of invited error is properly thought of, not as a species of waiver, but as
estoppel"); see also 5 C.J.S., Appeal & Error § 872 ("An appellant or plaintiff in error is
estopped, or will not be permitted, to take advantage of errors for the commission of
which he or she is responsible . . . or . . . has invited or induced the trial court to
commit."). Others suggest it is grounded in waiver or "the common sense view that where
a party invites the trial court to commit error, he cannot later cry foul on appeal." United
States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

This court typically states the invited-error doctrine without labeling it or
identifying its doctrinal source. E.g., Gilliland, 189 Kan. at 452 ("It is elementary that a
litigant cannot take contrary positions, one in which he has sought and procured an order,
ruling or judgment in the trial court and another in the supreme court in which he
complains of such order, ruling or judgment."). But this court has used both "waiver" and
10
"estoppel" when referring to the effect of a failure to object to jury instructions. See, e.g.,
State v. Moore, 230 Kan. 495, 498, 639 P.2d 458 (1982) ("Defendant waived any right to
a more specific instruction on the subject by failure to object and failure to submit a
requested instruction in writing.") (Emphasis added.); Sams v. Commercial Standard Ins.
Co., 157 Kan. 278, 288, 139 P.2d 859 (1943) (holding that when an instruction is clearly
erroneous an "appellant is not estopped from complaining of [the instruction] as error by
not having objected to it at the time it was given") (Emphasis added.).

We urge parties in future cases to more deeply explore whether Kansas cases
follow or should follow concepts of estoppel or waiver because the invited-error
doctrine's application may vary depending on which doctrinal route applies. See Steckline
Communications, Inc. v. Journal Broadcast Group of KS, Inc., 305 Kan. 761, 769, 388
P.3d 84 (2017) ("In sum, waiver is the intentional surrender of a right, while estoppel is
the legal inability to assert a right."). But we need not choose that path today because
Fleming has not established relief under the authorities he presents.

With these general concepts in mind, we turn to Fleming's four arguments.

1. K.S.A. 22-3414(3) does not preclude application of the invited-error doctrine.

Fleming argues that applying the invited-error doctrine to jury instruction issues
runs afoul of K.S.A. 22-3414(3). This argument requires us to interpret the statute and
thus presents an issue over which we exercise unlimited review. In re Marriage of
Brown, 295 Kan. 966, 969, 291 P.3d 55 (2012). Legislative intent governs that review,
and "[r]eliance on the plain and unambiguous language of a statute is 'the best and only
safe rule for determining the intent of the creators of a written law.'" State v. Spencer
Gifts, 304 Kan. 755, 761, 374 P.3d 680 (2016) (quoting Merryfield v. Sullivan, 301 Kan.
397, 399, 343 P.3d 515 [2015]). We read the statutory language as it appears, without
11
adding or deleting words, and only "[i]f the language is less than clear or is ambiguous,
[do] we move to statutory construction." Ambrosier v. Brownback, 304 Kan. 907, 911,
375 P.3d 1007 (2016). If a statute is not ambiguous, we do not examine "legislative
history, background considerations that speak to legislative purpose, or canons of
statutory construction." In re Marriage of Brown, 295 Kan. at 969.

The statute at issue—K.S.A. 22-3414(3)—states:

"No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless the party objects thereto before the
jury retires to consider its verdict stating distinctly the matter to which the party objects
and the grounds of the objection unless the instruction or the failure to give an instruction
is clearly erroneous."

The statute ignores invited error. But it does make clear that the mere failure to
object to an instruction will not constitute a waiver of a claim about a clearly erroneous
instruction. See State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). Even without
a specific statutory reference to clear error, Fleming argues the Legislature knows how to
state its intent to entirely prevent appellate review when a party fails to object. See
K.S.A. 60-404 ("A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of evidence
unless there appears of record objection to the evidence timely interposed and so stated as
to make clear the specific ground of objection.").

We agree with Fleming up to this point. Indeed, the Legislature knows how to
prevent all review of an issue or to grant limited review. From that point forward,
however, we disagree with Fleming. Although he urges us to interpret the Legislature's
silence to signify an intent to allow review of invited error under the clear error provision,
doing so requires us to read words into the statute. But we do not add words to a statute;
12
instead, we read the statutory language as it appears. Ambrosier, 304 Kan. at 911. And we
have not read the opening phrase as implying that the invited-error doctrine cannot be
applied to jury instructions, as does Judge Leben. Fleming, 2016 WL 3960159, at *5.

For example, in keeping with the plain wording of K.S.A. 22-3414(3), we recently
rejected the position that a defendant may challenge a clear error in a jury instruction
under any circumstances. Rather, "a defendant's ability to allege instructional error, even
under K.S.A. 22-3414(3), is not absolute." State v. Stewart, 306 Kan. 237, 248, 393 P.3d
1031 (2017). Specifically, we held in Stewart that K.S.A. 22-3414(3) does not mean the
invited-error doctrine never applies to jury instruction issues. Instead, we held: "The
invited error doctrine precludes a challenge to an instruction as clearly erroneous under
K.S.A. 22-3414(3) when the district court gives a defendant's requested instruction to the
jury. State v. Jones, 295 Kan. 804, 811-12, 286 P.3d 562 (2012)." 306 Kan. at 248. We
then cited cases in which this court had held the invited-error doctrine applies when a
party (1) agrees on the record to the wording in the instruction, (2) requests the
instruction, or (3) agrees to or requests a judge's specific response to a jury question.
306 Kan. at 248-49 (citing Jones, 295 Kan. at 811-12; State v. Peppers, 294 Kan. 377,
393, 276 P.3d 148 [2012]; State v. Adams, 292 Kan. 151, 163-65, 254 P.3d 515 [2011]).

Some cases in which this court applied the invited-error doctrine to a jury
instruction issue predate the adoption of K.S.A. 22-3414(3) in 1970 and its civil
counterpart in 1963. See, e.g., State v. Graham, 172 Kan. 627, 629, 242 P.2d 1067
(1952); see also L. 1970, ch. 129, § 22-3414 (Code of Criminal Procedure); L. 1963,
ch. 303, § 60-251 (Code of Civil Procedure). For example, in Graham, a deliberating jury
asked a question before it returned its verdict. The court consulted with the attorneys for
both the State and the defendant, who "agreed the question asked had nothing to do with
the definite issues of the case and should not be answered." 172 Kan. at 629. On appeal,
the defendant sought to "renege on his agreement and [contended] the trial court erred in
13
failing to give additional instruction respecting the question asked by the jury." 172 Kan.
at 629. This court refused to consider the issue, stating: "[T]his court is not disposed to
permit this [defendant], or for that matter any other litigant, to predicate error on action to
which he has solemnly agreed in the court below." 172 Kan. at 629.

We presume our Legislature knows the law in existence at the time of an
enactment. See In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 524,
957 P.2d 473 (1998). Thus, we presume the Legislature knew of this court's holding in
Graham and other cases that the invited-error doctrine precluded review of jury
instruction errors. And we conclude the Legislature would have included invited error in
K.S.A. 22-3414(3), along with unobjected-to error, if it had intended to provide appellate
review of invited errors in jury instructions.

We also note that we are not alone in this interpretation of provisions much like
K.S.A. 22-3414(3). For example, federal rules of criminal and civil procedure similarly
require objections to a jury instruction to preserve a claim of error. If a party fails to
object to an instruction, an appellate court may consider a plain error in the instruction if
it affects substantial rights. Fed. R. Civ. P. 51(b) (applying to civil cases and imposing
objection requirement except in situations of plain error affecting substantial rights); Fed.
R. Crim. P. 30(d) (applying to criminal cases and imposing objection requirement unless
Fed. R. Crim. P. 52[b] applies); Fed. R. Crim. P. 52(b) (allowing review for "plain error
that affects substantial rights"). And like K.S.A. 22-3414(3), these federal rules do not
address how the invited-error doctrine affects the general rule that appellate courts will
not review errors that the complaining party failed to present during trial. See Smith v.
Borough of Wilkinsburg, 147 F.3d 272, 276 (3d Cir. 1998) ("By requiring parties to
object with specificity before the jury retires, the rule ensures that the district court is
made aware of and given an opportunity to correct any alleged error in the charge before
the jury begins its deliberations. When errors are recognized and corrected at that early
14
stage, the burden on the courts of appeals is diminished, fewer jury verdicts will have to
be vacated and fewer cases will need to be tried a second time. [Citations omitted.])".

Even though these rules are silent about invited error, federal appellate courts
apply the doctrine to complaints of error when the complaining party proffers the
instruction. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 704, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999) ("As the city itself proposed the
essence of the instructions given to the jury, it cannot now contend that the instructions
did not provide an accurate statement of the law."); United States v. Jereb, 882 F.3d
1325, 1341 (10th Cir. 2018) ("[T]he invited error doctrine applies in cases such as this
one, where the defendant requested the jury instruction he later challenges on appeal.").

In both the Kansas and federal cases, the invited-error doctrine has resulted in no
review by the appellate courts. In other words, Kansas courts do not review for clear
error, nor do federal courts review for plain error when the invited-error doctrine applies.
Thus, we reject Fleming's argument that K.S.A. 22-3414(3) precludes applying the
invited-error doctrine to claimed errors in a jury instruction.

2. Pretrial requests may invite error and did so here.

Fleming also argues a court should not conclude he has invited error when he
submitted his proposed jury instructions before trial and thus did not know what evidence
the State would present. In two decisions filed after the Court of Appeals' rejection of
Fleming's arguments, this court has considered the implications of timing. In other words,
when did the party propose the instruction and does that matter when considering if the
error was invited?

15
 In the earlier of these two cases, Sasser, this court held a Court of Appeals panel
erred in applying the invited-error doctrine. 305 Kan. at 1233. As in Fleming's case,
before trial, the State and the defense proposed largely identical instructions to the one
given by the trial court. 305 Kan. at 1234.

Our analysis in Sasser began by acknowledging the long-standing general rule that
"a defendant cannot complain on appeal about a claimed error that was invited." 305 Kan.
at 1235. But we also cautioned: "The defendant's actions in causing the alleged error and
the context in which those actions occurred must be carefully reviewed in deciding
whether to trigger this doctrine. There is no bright-line rule for its application." 305 Kan.
at 1235.

We noted, however, that some cases identified bright-line circumstances where the
doctrine did not apply. First, the invited-error doctrine does not apply to structural
constitutional error. Second, the mere failure to object to a proposed instruction at the
instructions conference does not trigger the doctrine. 305 Kan. at 1235.

We then discussed the specifics of the case. Because the defendant had proposed a
jury instruction before trial and had failed to object to it at the instructions conference, the
Court of Appeals concluded invited error precluded review of the merits of the
defendant's argument. 305 Kan. at 1234. This court disagreed, finding the defendant's
"case is more analogous to those in which we have declined to apply the invited error
doctrine when counsel merely acceded to—but did not affirmatively request—a factually
appropriate instruction." 305 Kan. at 1236.

The reason for this conclusion rested in the nature of the error—an alternative
means error—and the circumstances surrounding the drafting of instructions. The court
noted the defense had submitted the proposed instruction to the court "before an
16
alternative means error could be invited because the trial had not yet occurred. In other
words, counsel could not appreciate before trial that the instruction would be
overbroad—as measured by the State's evidence—until that evidence was submitted."
305 Kan. at 1238. This court distinguished the case—in which no assessment could be
made until the close of evidence—from others "when a lawyer submits a pretrial
instruction on the elements of an offense that defines the offense more expansively than it
is charged by the State." 305 Kan. at 1238.

The Sasser court acknowledged "these issues may present close calls at times,
especially because defense counsel has a professional obligation at the instructions
conference to match the proposed instructions that are about to be given with the
evidence presented at trial." 305 Kan. at 1239. Ultimately, we declined to apply the
invited-error doctrine because the defendant proposed the challenged instruction before
he could know what the evidence at trial would be, the proposed instruction matched the
State's allegations, and "Sasser's failure to object to the jury instructions finalized at the
instructions conference more closely resembles acquiescence than invitation." 305 Kan.
at 1239.

In contrast, in State v. Brown, 306 Kan. 1145, 401 P.3d 611 (2017), we considered
the exact situation we had distinguished in Sasser, 305 Kan. at 1238—that is, a lawyer
submitting a pretrial instruction on the elements of an offense that defines the offense
more expansively than it is charged by the State. In Brown, the defendant argued the
district court erred in the way it instructed the jury about the requisite intent—one of the
elements that would be known before trial. We held the invited-error doctrine applied
because "Brown proposed the exact intent instruction that the court ultimately gave to the
jury and did not object to it." 306 Kan. at 1166.

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 Fleming's situation is more analogous to Brown than Sasser. Before trial, Fleming
could have assessed the propriety of the instruction he proposed. He complains of error
because the language in the instruction differed from the language in the State's
complaint. This difference was as obvious before trial as after trial.

Under the circumstances of this case, the fact that Fleming submitted his proposed
instruction before trial does not prevent application of the invited-error doctrine.

3. Constitutional rights test does not advance Fleming's cause.

Fleming argues the jury instruction's deviation from the State's allegations in the
charging document constitutes a due process violation and given the importance of those
rights, the invited-error doctrine should not apply. He largely relies on Hargrove, 48 Kan.
App. 2d 522, which was decided by a different panel of the Court of Appeals than the one
who heard Fleming's cause. In Hargrove, Judge G. Gordon Atcheson, writing for the
panel, questioned: "Should the [invited-error] 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?" 48 Kan. App. 2d at 524.
Judge Atcheson noted that this court had held the invited-error doctrine could be applied
in situations involving a criminal defendant's statutory right to receive jury instructions
on lesser included offenses, but had not yet addressed whether the doctrine extended to
cases of constitutional error. 48 Kan. App. 2d at 531-32 (citing State v. Angelo, 287 Kan.
262, 279-80, 197 P.3d 337 [2008], which addressed alleged error in failing to give lesser
included offense instructions when, at trial, the defendant strategically asked the court not
to give any lesser included offense instruction).

In essence, the Hargrove panel concluded the doctrine should not be applied
automatically, but it would preclude consideration of a constitutional issue under the
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circumstances presented by the record on appeal in that case. The panel discussed
whether different rules should apply depending on how the error was introduced:
Counsel's strategic decisions to sacrifice a potential constitutional interest for a tactical
advantage should be subjected to the invited-error doctrine, but error introduced through
counsel's inadvertence and without strategic design should not. "To hold otherwise would
deprive an accused of individual fairness." 48 Kan. App. 2d at 547.

The Hargrove panel then examined whether the record revealed if the defense had
requested the instruction as part of its strategy. On the record before it, the Hargrove
panel could not make this determination. 48 Kan. App. 2d at 551-52. The panel adopted a
"pragmatic approach" that "defer[s] review of the flawed instruction until the ambiguity
of a silent record has been resolved through an appropriate evidentiary hearing."
Hargrove, 48 Kan. App. 2d at 553. Because that review had not occurred and the
defendant had the burden to establish an adequate record, the panel determined the
invited-error doctrine precluded direct appellate review. The panel acknowledged the
defendant could still have a remedy and opportunity to develop an appropriate record
through relief under K.S.A. 60-1507. 48 Kan. App. 2d at 555-58.

Subsequently, this court in State v. Verser, 299 Kan. 776, 784-85, 326 P.3d 1046
(2014), applied the invited-error doctrine even though the defendant had alleged a
violation of constitutional rights. We first noted:

"It is true that the invited error doctrine is inapplicable when a constitutional
error is structural. See State v. Hill, 271 Kan. 929, 934, 26 P.3d 1267 (2001) (structural
errors so intrinsically harmful, automatic reversal required without regard to existence of
effect on outcome), abrogated on other grounds by State v. Voyles, 284 Kan. 239, 252-
53, 160 P.3d 794 (2007). But not all constitutional errors qualify for the 'structural' label.
In fact, few do. See United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 176
L. Ed. 2d 1012 (2010) (short list of structural errors includes total deprivation of counsel,

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 lack of impartial trial judge, denial of right to self-representation at trial, violation of right
to public trial, erroneous reasonable doubt instruction)." 299 Kan. at 784.

Thus, under Verser, raising constitutional issues does not preclude application of the
invited-error doctrine.

We then cited Hargrove and noted its distinction between mistakes that arise from
inadvertence and those that result from strategic decisions. In Verser, the record
established that a strategic decision had led to the error. 299 Kan. at 784. Thus, any error
was not reversible because "it was not only invited; it was welcomed by the defense." 299
Kan. at 785.

Fleming does not allege structural error. But in contrast to Verser, the record here
is not as clear; it is more like the silent record in Hargrove. On appeal, Fleming argues
the error in the proposed instruction might have been inadvertent and suggests because it
followed a pattern instruction it must have been. But we simply cannot tell.

As the Hargrove panel stated, reading the silent record as Fleming proposes
"seems flawed in several respects. First, it imputes meaning to a silent record that cannot
be inferred and should not be presumed on any logical basis. Second, it rewards a lawyer
for deliberate but stealthy manipulation of the process." 48 Kan. App. 2d at 552-53. In
Hargrove, the panel "declined to take up the merits" of the jury instruction challenge "in
the absence of a developed record." 48 Kan. App. 2d at 553. Thus, even under the
authority cited by Fleming he cannot succeed.

The mere fact Fleming raises constitutional issues does not prevent application of
the invited-error doctrine.

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 4. Balancing of interests does not prevent application of the invited-error doctrine
here.

In Hargrove, the panel stated: "In reconciling invited error and resulting
constitutional defects in jury instructions adversely affecting criminal defendants, we
balance competing considerations bound up in fairness—individual fairness for the
person standing as the accused and institutional fairness for the system as an adjudicatory
process." 48 Kan. App. 2d at 547. Fleming argues the Court of Appeals erred in failing to
apply that test and in failing to find its application required the Court of Appeals to reach
the merits of his case.

But one panel of the Court of Appeals may disagree with a previous panel of the
same court. Graham v. Herring, 297 Kan. 847, 861, 305 P.3d 585 (2013). Hargrove is, at
most, persuasive authority for the Fleming panel and for this court. Also, as we have
discussed, applying Hargrove does not help Fleming. Thus, if the panel had applied
Hargrove, it would not have reached the merits of Fleming's argument. And before us,
Fleming does not explain why the Hargrove panel's analysis was incorrect when, as here,
a silent record exists to determine whether his counsel acted inadvertently or
strategically.

Fleming also argues we should adopt Judge Leben's "interest of justice" test,
which he appears to measure by whether a defendant could satisfy the heightened review
standard of clear error. In large part, Judge Leben's view is based on a reading of K.S.A.
22-3414(3) that this court has not adopted. See Stewart, 306 Kan. at 248-49.

Even so, we agree with Judge Leben's and the Hargrove panel's conclusion that
the invited-error doctrine should not be applied in every case in which the complaining
party had proposed the complained-about jury instruction. Instead, as we said in Sasser,
305 Kan. at 1235: "The defendant's actions in causing the alleged error and the context in
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which those actions occurred must be carefully reviewed in deciding whether to trigger
this doctrine. There is no bright-line rule for its application."

We acknowledge the more searching analysis of the facts may deviate from some
of our cases that have formalistically applied the doctrine just because the defendant
requested the instruction and did not later object at conference or when the court gave it.
E.g., Jones, 295 Kan. at 812. But we conclude such an analysis is appropriate in this and
future cases because it ensures that we limit application of the invited-error doctrine to
cases in which the complaining party truly invites the error.

Based on our review of the facts here, we determine invited error precludes review
of Fleming's alleged instruction error. Defense counsel relied on the PIK Crim. 4th
54.410 to describe the first element of aggravated robbery: "the defendant knowingly
took property from the (person) (presence) of insert name." The charging document was
clear that the State alleged Fleming took only two items when committing aggravated
robbery. The document was also clear that other items taken would be at issue in the theft
count. Unlike counsel in Sasser, Fleming's counsel had notice of the particular facts the
State alleged supported its case and that those facts could be of particular significance to
different charges brought. See Sasser, 305 Kan. at 1238. Yet Fleming's counsel proposed
an instruction that used the pattern language rather than proposing a modification limiting
the jury's consideration to the specific property alleged here and did not at any later point
object or request a modification.

We acknowledge there is a possibility that defense counsel's actions here resulted
from inadvertence rather than trial strategy. But Fleming does not argue, nor do we
perceive, any potential error was structural. If counsel's error resulted from inadvertence,
Fleming may pursue relief through a K.S.A. 60-1507 action. See Hargrove, 48 Kan. App.
2d at 554-58.
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 We conclude invited error precludes our review of Fleming's asserted jury
instruction error on these facts.

Affirmed.

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