State v. Buck-Schrag

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 121,203

STATE OF KANSAS,
Appellee,

v.

ZACHARY BUCK-SCHRAG,
Appellant.

SYLLABUS BY THE COURT

1.
It is error for a prosecutor to urge jury members to convict based on a duty to
protect the community.

2.
An appellate court reviews instructions as a whole to see whether they properly
and fairly stated the law as applied to the facts of the case and could not have reasonably
misled the jury.

3.
K.S.A. 2019 Supp. 21-6820(e)(3) does not require an appellate court to review for
the first time on appeal a claim that the identical offense doctrine required the district
court to sentence the defendant in accordance with a crime other than the crime of
conviction.

1
4.
Under K.S.A. 22-4513(b), the sentencing court at the time of initial assessment
must consider the financial resources of the defendant and the nature of the burden that
payment will impose explicitly, stating on the record how those factors have been
weighed in the court's decision.

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed December 18, 2020.
Affirmed.

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

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: A jury convicted Zachary Buck-Schrag of first-degree felony murder,
criminal discharge of a firearm at an occupied vehicle, aggravated assault, and criminal
possession of a firearm. We affirm.

FACTS

On January 13, 2018, Buck-Schrag, Carissa Williams, and Michael Raines stopped
at a service station on their way to a bar in Topeka, Kansas. Williams was driving her
SUV, and Buck-Schrag was her passenger. Raines was in his own car. They parked both
2
vehicles at the gas pumps, and Williams went inside to pay for gas. Travis Larsen and his
friend and roommate, Bruce Reynolds, were also parked at the service station in Larsen's
car. They noticed Buck-Schrag, Williams, and Raines, but were not acquainted with
them. Shortly after Buck-Schrag and his friends arrived, Larsen drove out of the parking
lot.

Buck-Schrag watched Larsen's car leave. When Larsen stopped at a stoplight
alongside the gas station, Buck-Schrag thought he heard someone from inside the car yell
something at him. He also thought he saw something long and silver that looked like a
clip. After seeing this object, Buck-Schrag showed Larsen and Reynolds his own pistol.
Upon seeing the weapon, Larsen pulled back into the parking lot. Raines and Buck-
Schrag began walking towards the car to ask the men what they wanted, but Larsen
quickly left again. By this time, Williams had finished pumping gas, so she and Buck-
Schrag got into her SUV, Raines got into his car, and the three headed for the bar.

As the group drove down the street, with Raines leading and Williams and Buck-
Schrag behind, they noticed Larsen's car pull in behind them. Williams changed lanes to
see if Larsen was following them and Larsen also changed lanes. Buck-Schrag told
Williams to turn right to try to get away from the vehicle. Williams complied and began
to speed up. Larsen also turned and kept pace with Williams. Williams kept driving and
made a few more turns and Larsen continued following. On her third turn, Williams'
speed and the snowy conditions caused her to lose control of her SUV and she slid off of
the road. Seconds later, the front driver's side of Larsen's vehicle hit the back passenger's
side of Williams' SUV. Buck-Schrag immediately leaned out of his window and fired
four shots at Larsen's vehicle. Buck-Schrag would eventually testify that he believed the
crash was intentional and that his and Williams' lives were in danger.

3
 Williams immediately drove away. Police were alerted to the gunshots and
responded to the scene, where they found Larsen dead from a gunshot wound. Reynolds
was not in the car; he had run home after the shooting. When police eventually searched
the vehicle and Larsen and Reynolds' home, they found no firearms.

After the shooting, Williams and Buck-Schrag drove to Buck-Schrag's friend's
house and exchanged Williams' SUV for Buck-Schrag's car. From there, they went to
Buck-Schrag's mother's house where Buck-Schrag changed clothes and exchanged his car
for his mother's truck. They returned Williams to her SUV and both went home.

The next morning, Buck-Schrag woke up, went to pick up some breakfast, and
threw his gun away. Later that day he heard police were looking for him in connection to
a murder, so he left town. He came back after a short time and turned himself in.

Williams also learned the police were looking for her, so she voluntarily came to
the police station for questioning. Before she went in, she spoke with Buck-Schrag. He
told her to lie about what had happened and tell the police she backed her SUV into
something.

The State charged Buck-Schrag with felony murder and intentional second-degree
murder as an alternative. He was also charged with aggravated assault, criminal discharge
of a firearm at an occupied vehicle, and criminal possession of a firearm. Buck-Schrag
filed a motion for immunity based on self-defense. The district court denied the motion
after deciding there was probable cause to support a conclusion that Buck-Schrag had
neither a subjective nor objectively reasonable belief that deadly force was necessary.

4
 The jury found Buck-Schrag guilty of all counts. The court sentenced Buck-
Schrag to life in prison with a minimum term of 586 months for the murder conviction. It
also sentenced him to 32 months' imprisonment for the criminal discharge of a firearm
conviction, 12 months' imprisonment for the aggravated assault conviction, and 8 months'
imprisonment for the criminal possession conviction, all to run concurrent to the life
sentence. Finally, it ordered Buck-Schrag to pay $7,000 in attorney fees.

Buck-Schrag took a timely appeal to this court.

DISCUSSION

Buck-Schrag argues the prosecutor erred by making comments during closing
argument that persuaded the jury to convict based on its desire to protect the community
rather than on the evidence.

We use a two-step process to analyze claims of prosecutorial error. First, we
determine whether error occurred. The prosecutor committed error if "'the act complained
of [fell] 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.'" State v.
Thomas, 311 Kan. 905, 910, 468 P.3d 323 (2020) (quoting State v. Chandler, 307 Kan.
657, Syl. ¶ 6, 414 P.3d 713 [2018]). If we find error, we move to a harmlessness analysis
to "determine whether the error prejudiced the defendant's due process rights to a fair
trial." 311 Kan. at 910 (citing Chandler, 307 Kan. 657, Syl. ¶ 6). The error was harmless
if the State has shown "'beyond a reasonable doubt that the error complained of will not
or did not affect the outcome of the trial in light of the entire record.'" 311 Kan. at 910
(quoting State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 [2016]). In other words,

5
"'there is no reasonable possibility that the error contributed to the verdict.'" Chandler,
307 Kan. at 674 (quoting Sherman, 305 Kan. at 109).

We recently reiterated the law governing prosecutorial error:

"'A prosecutor has wide latitude in crafting arguments and drawing 'reasonable
inferences from the evidence but may not comment on facts outside the evidence.' Any
argument 'must accurately reflect the evidence, accurately state the law, and cannot be
"intended to inflame the passions or prejudices of the jury or to divert the jury from its
duty to decide the case based on the evidence and the controlling law."' [Citations
omitted.]" State v. Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015).

"The prosecutor is constrained from inviting the jury to rely on considerations
outside the record because the jury's fundamental task is to decide a case based on a calm
and dispassionate consideration of the evidence and controlling law. State v. Holt, 300
Kan. 985, 998, 336 P.3d 312 (2014); State v. Hall, 292 Kan. 841, 853, 257 P.3d 272
(2011); State v. Ruff, 252 Kan. 625, 633, 847 P.2d 1258 (1993); Gershman, Prosecutorial
Misconduct § 11:4 (2d ed. 2019). Thus, a prosecutor's comments are improper if they
encourage jurors to consider emotions, passions, or prejudices as a basis for their verdict,
because emotions, passions, and prejudices are not facts. Holt, 300 Kan. at 998 (improper
to encourage jurors to rely on emotions to convict); Hall, 292 Kan. at 853 (prosecutors
are not allowed to inflame passions or prejudices of jurors and distract from duty to make
decisions based on evidence). . . .

"This court has emphasized that claims of prosecutorial error are fact specific and
outcomes will depend on the particulars of each case. Sherman, 305 Kan. at 110-11; see
also United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974, 76 L. Ed. 2d 96
(1983) (observing that Chapman affirmatively rejected a per se rule)." Thomas, 311 Kan.
at 910-11.

6
 Buck-Schrag avers the following comments, made by the prosecutor during
closing argument, were error:

"We might be afraid of one another from time to time. People might do things that are
annoying or even troublesome. But this is not Dodge City, this is not the Wild West, and
this is not Mad Max Beyond Thunderdome. We simply cannot go around killing one
another with guns just because we are afraid. Please, find the defendant guilty."

Our caselaw makes it clear it is error to urge jury members to convict based on a
duty to protect the community.

In State v. Finley I, 268 Kan. 557, 998 P.2d 95 (2000), the prosecutor erred by
making the following comments during closing argument:

"'You know, they say all the time that our police department enforces our laws in this
county, that's not true. It's you guys. We have people in Topeka that make our laws, we
have people in my office that prosecute them, but you all have the job of enforcing them.
You all can find that he committed these crimes and hold him responsible for them. We
cannot tolerate this kind of drug use in our community, especially when a person dies.
You have to find him guilty. Thank you.'" Finley I, 268 Kan. at 571.

These remarks amounted to reversible error because they asked jurors to look
outside of the evidence. This court compared them to remarks made by a prosecutor in
State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993). In Ruff, the prosecutor erred when he
said to the jury, "'Ladies and gentlemen of the jury, do not allow this conduct to be
tolerated in our county. . . . Send that message, ladies and gentlemen, come back with a
verdict of guilty. Thank you.'" 252 Kan. at 631, 636.

7
 This court also found error in State v. Zamora, 247 Kan. 684, 687, 689-90, 803
P.2d 568 (1990), where the prosecutor told the jury, "'[The defendant] has raped this
victim once. If he is found not guilty, he will get away with it again.'"

The prosecutor erred in State v. Jordan, 250 Kan. 180, 193, 825 P.2d 157 (1992),
by saying, "'And if you want to live in a community where a person can kill another
person . . . in the manner that this was conducted and excuse it because he had a few
drinks, that's up to you.'"

And in State v. Green, 254 Kan. 669, 684-85, 867 P.2d 366 (1994), it was error for
the prosecutor to say,

"'Ladies and gentlemen of the jury, you are here to decide this case to determine what the
verdict is and the outcome of this case. The issue is the death of Daniel Evans and the
involvement of that man in that death. What you decide will be what our community
stands for."'

Although this court routinely finds error in a prosecutor's appeal to community
interests, it has, at times, also rejected a defendant's claim that a prosecutor made such an
error. In State v. Adams, 292 Kan. 60, 71, 253 P.3d 5 (2011), the defendant argued the
prosecutor improperly appealed to the jury members' sense of community by stating in
closing argument: "'Do not, I implore you, sanction this behavior. You agree to the
defendant's theory that this was self-defense you are sanctioning his behavior.'" 292 Kan.
at 71. In considering this statement, this court observed that the defendant had taken the
statement out of context. The prosecutor's full remarks were:

"'Do not, I implore you, sanction this behavior. You agree to the defendant's theory that
this was self-defense, you are sanctioning his behavior and the evidence does not support
8
 it. He's asking you to ignore people, ignore evidence, and most importantly, ignore the
law because you do not bring a gun to a fist fight and you do not shoot someone who's
only attacking physically even if that's true, and I'm not saying it is. There's some real
dispute there.'" 292 Kan. at 72.

In context, the comments were not an "appeal to community interests; rather, the
prosecutor was arguing that the evidence did not support Adams' theory of self-defense."
292 Kan. at 73. The comments were like those in State v. Finley II, where, in the
defendant's second trial after remand, the prosecutor asked the jury not to let the
defendant "'get away with'" his crime. 273 Kan. at 244. The Finley II court held the
prosecutor's comments were not erroneous; they were simply an argument that "'the
defendant should not escape responsibility for this crime based on his highly implausible
story.'" Adams, 292 Kan. at 72 (quoting Finley II, 273 Kan. at 245).

Buck-Schrag likens the prosecutor's remarks in this case to those in Ruff and
Finley I. The State avers the prosecutor's comments in this case, when considered in
context, where akin to those in Finley II.

The State's arguments are compelling. It points out the prosecutor made his
comments while in the midst of an argument that the defendant's subjective fear was not
enough to justify self-defense:

"[E]ven if he did believe in his own mind that he had to use deadly force, that is, not just
that he had to use some kind of force but that he had to use force that is likely to either
kill these people or cause them great bodily harm that conclusion is not reasonable when
you look at all of the evidence.

9
 "Because again, the defense's argument in this case is entirely from his own
perspective but it misstates or it overlooks some of the things that he was doing. For
apparently no real good reason, he pulls out a Glock 40 and then these people start to
follow them. When he's asked about this on cross-examination, he doesn't say, yea, I
could understand why they might follow me, what with me having kind of threatened
them with a gun and all of that sort of stuff.

"But ultimately, the thing that the defendant says was the biggest threat or the
most troublesome problem in this situation is when the car hit him, right? So at that point,
he's not saying I was worried that they were going to pull out a pistol and shoot me. At
that point in time, it's because of the collision.

"But the defendant, by his testimony and the other evidence, the defendant didn't
even wait for the dust to settle on that. He didn't wait for the cars to stop to see what
happened next, to see if maybe, you know, are they going to try and ram us again or what
are they going to do. No. He just reached out of the car and he started shooting and that's
too much. That's excessive. . . . Not reasonable under the circumstances. You should have
no reasonable doubt whatsoever that the defendant acted in self-defense because the
evidence clearly shows that he did not. This is a civilized society. We might be afraid of
one another from time to time. People might do things that are annoying or even
troublesome. But this is not Dodge City, this is not the Wild West, and this is not Mad
Max Beyond Thunderdome. We simply cannot go around killing one another with guns
just because we are afraid. Please, find the defendant guilty."

The State describes these comments as a callback to earlier remarks, when the
prosecutor said the following:

"Is it reasonable to shoot someone in the head when you don't know what's going
on? When you don't know exactly what's going to happen? Is that reasonable? Does that
make sense? It's a question you're going to have to ask as you deliberate in this case
because there is no question who killed Travis Larsen. The man who killed Travis
10
 Larsen, by his own admission, is here in this courtroom today. The real question that's
posed in this case is whether or not the defendant's behavior was lawful, justified under
the laws of self-defense.

"[Defense counsel] is right about a couple of things. The State has the burden of
proof. The defendant does not. The State has met its burden of proof in this case and you
should follow the law and that's what I'm going to talk about right now.

"Because fear is not enough. We live in a civilized society. Our fear of one
another does not justify our killing one another. This is what the law is. . . . 'A defendant
is permitted to use against another person physical force that is likely to cause death or
great bodily harm only when and to the extent that it appears to him and he reasonably
believes such force is necessary to prevent death or great bodily harm to himself or
someone else from the other person's imminent use of unlawful force. Reasonable belief
requires both a belief by the defendant and the existence of facts that would persuade a
reasonable person to that belief.'"

In sum, the State argues, the prosecutor was merely arguing that fear, by itself,
was not sufficient to use deadly force.

We conclude that, while the prosecutor surely toed the line, he did not err. The
prosecutor made the comments in the midst of an argument that self-defense must have
subjective and objective justification. We view the remarks as an effort to impress upon
the jury the legal reality that a defendant cannot use deadly force based on subjective fear
alone. Although the comments ride a fine line, they are more like those in Adams and
Finley II and, consequently, were not erroneous.

11
Sufficiency of the Evidence

Buck-Schrag argues that he shot Larsen in self-defense and that the State failed to
provide sufficient evidence to disprove that theory beyond a reasonable doubt.
Consequently, he urges this court to vacate his convictions for aggravated assault,
criminal discharge of a firearm at an occupied vehicle, and felony murder.

When a defendant has challenged the sufficiency of the evidence, this court
"review[s] the evidence in a light most favorable to the State to determine whether a
rational factfinder could have found the defendant guilty beyond a reasonable doubt."
State v. Rucker, 309 Kan. 1090, 1093, 441 P.3d 1053 (2019) (quoting State v. Lowery,
308 Kan. 1183, 1236, 427 P.3d 865 [2018]). It does not "'reweigh evidence, resolve
conflicts in the evidence, or pass on the credibility of witnesses. . . . [T]here is no
distinction between direct and circumstantial evidence in terms of probative value.'"
Rucker, 309 Kan. at 1093 (quoting Lowery, 308 Kan. at 1236). "'A conviction of even the
gravest offense can be based entirely on circumstantial evidence and the inferences fairly
deducible therefrom. If an inference is a reasonable one, the jury has the right to make the
inference.'" Rucker, 309 Kan. at 1093 (quoting Lowery, 308 Kan. at 1236).

Under K.S.A. 2019 Supp. 21-5108(c), once a defendant provides competent
evidence supporting a theory of self-defense, "the state has the burden of disproving the
defense beyond a reasonable doubt." Presumably, the district court found that Buck-
Schrag provided competent evidence of self-defense, because the court instructed the jury
on that theory. And the State has not alleged that Buck-Schrag failed to satisfy this
requirement. Thus, the State had a burden to disprove the self-defense theory at trial.

12
 Buck-Schrag argues that the State failed to present sufficient evidence to meet this
burden and, consequently, did not present sufficient evidence for a rational fact-finder to
conclude beyond a reasonable doubt that he was guilty of aggravated assault, criminal
discharge of a firearm at an occupied vehicle, and felony murder.

K.S.A. 2019 Supp. 21-5222 describes when a person is entitled to use self-
defense:

"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
force is necessary to defend such person or a third person against such other's imminent
use of unlawful force.

"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes that such use of deadly
force is necessary to prevent imminent death or great bodily harm to such person or a
third person.

"(c) Nothing in this section shall require a person to retreat if such person is using
force to protect such person or a third person."

This court has explained that a successful self-defense theory must pass a two-part test:

"'The first is subjective and requires a showing that [the defendant] sincerely and honestly
believed it was necessary to kill to defend herself or others. The second prong is an
objective standard and requires a showing that a reasonable person in [the defendant's]
circumstances would have perceived the use of deadly force in self-defense as
necessary.'" State v. Haygood, 308 Kan. 1387, 1405, 430 P.3d 11 (2018) (quoting State v.
McCullough, 293 Kan. 970, 975, 270 P.3d 1142 [2012]).

13
 Buck-Schrag argues the evidence showed Larsen was the clear aggressor in this
case and that he had a subjective and objectively reasonable belief that he needed to use
deadly force to defend himself and Williams against Larsen. He points to the evidence
that Larsen yelled at Buck-Schrag and drove erratically around the gas station, that he
chased and slammed into the back of Williams' car, and that he was generally acting
aggressively.

Although there was evidence that supported his self-defense theory, Buck-Schrag
ignores the evidence that counters that theory.

Buck-Schrag never heard Larsen threaten him; he did offer evidence that he
believed Larsen had yelled hostile remarks at him, and that he thought Larsen had flashed
a clip at him, but Buck-Schrag was not sure what Larsen said or what object he had seen.
Nonetheless, Buck-Schrag flashed his gun at Larsen and Reynolds. Notably, police never
found a gun or a clip in Larsen's vehicle.

When Larsen started following Williams and Buck-Schrag, the two did not look or
call for help; they continued driving. There was evidence that Larsen accidentally, rather
than intentionally, collided with Williams' SUV: the impact was mild, it was snowing,
the roads were icy, Williams herself had just lost control of her SUV and ran off the road,
and Reynolds testified that Larsen's brakes had locked up and he had tried to swerve out
of the way but accidentally struck Williams' SUV. After the collision, Buck-Schrag, who
was not hurt, leaned out of his window and immediately began firing his weapon at
Larsen's car. There is evidence that after Buck-Schrag finished shooting, Williams asked
Buck-Schrag "why he did that." Her comments suggest there was no objective threat to
her or Buck-Schrag's safety. There is evidence that Buck-Schrag responded, "[W]hat if
14
they had a gun and tried to shoot at us?" This suggests Buck-Schrag was not sure if there
was an actual threat.

After the shooting, Buck-Schrag went to a friend's house to switch vehicles and
then went to his mother's house to change his clothes and switch vehicles again. He did
not tell his mother or his friend what had occurred. He then went home to his girlfriend
and did not tell her what happened. The next morning, he threw away his gun. He left
town when he heard the police were looking for him and asked Williams to lie about the
events of the evening. The State argues these actions show that Buck-Schrag did not
believe he was justified in shooting Larsen.

We find this was ample evidence for a rational fact-finder to conclude beyond a
reasonable doubt that Buck-Schrag did not act in self-defense. Buck-Schrag's argument
fails.

Jury Instructions

At trial, the district court provided the standard PIK instruction on affirmative
defenses. Buck-Schrag alleges that the instruction, as given, amounted to clear error
because it did not more specifically instruct the jury that the State was required to
disprove beyond a reasonable doubt that self-defense and/or defense of another was
warranted in this matter.

We review allegations of jury instruction error in multiple steps:

"We must first decide whether the issue has been preserved. Second, we analyze
whether an error occurred. This requires a determination of whether the instruction was

15
 legally and factually appropriate. We exercise unlimited review of those questions. Next,
if we find error, we conduct a 'reversibility inquiry.'" State v. Williams, 308 Kan. 1439,
1451, 430 P.3d 448 (2018) (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d
195 [2012]).

"'The standard for the reversibility inquiry depends on whether the instruction
was properly requested in district court. . . . If the instruction was not requested, this court
applies a clear error standard to the reversibility inquiry. "Under that standard, an
appellate court assesses whether it is 'firmly convinced that the jury would have reached
a different verdict had the instruction error not occurred.'" Williams, 308 Kan. at 1451
(quoting Williams, 295 Kan. at 516). The burden to establish clear error is on the
defendant. In examining whether a party has met its burden, we consider the entire record
de novo. See Williams, 308 Kan. at 1451.' State v. Gentry, 310 Kan. 715, 720-21, 449
P.3d 429 (2019)." State v. Gray, 311 Kan. 164, 173, 459 P.3d 165 (2020).

Buck-Schrag did not request a different instruction in the district court, so we
review for clear error.

Generally, when an appellant argues a trial court should have given an additional
instruction, this court analyzes whether the additional instruction accurately reflects the
law. If it did, then the instruction was legally appropriate. See, e.g., Gray, 311 Kan. at
173-74 (concluding instruction on second-degree murder would have been legally
appropriate because it is lesser included offense of first-degree murder; moving on to
whether instruction was factually appropriate).

The analysis here requires a different approach. Buck-Schrag argues that the
affirmative defense instruction the trial court offered failed to accurately portray the law.
Thus, we focus on that assertion: did the standard PIK instruction appropriately inform

16
the jury of applicable legal requirements, or did the law require additional and more
explicit language?

K.S.A. 2019 Supp. 21-5108(c) provides:

"A defendant is entitled to an instruction on every affirmative defense that is
supported by competent evidence. Competent evidence is that which could allow a
rational fact finder to reasonably conclude that the defense applies. Once the defendant
satisfies the burden of producing such evidence, the state has the burden of disproving the
defense beyond a reasonable doubt."

Buck-Schrag insists the standard PIK instruction on affirmative defenses that the
district court gave in this case did not fairly and accurately portray the law as provided in
K.S.A. 2019 Supp. 21-5108(c). That instruction was:

"The defendant raises self-defense and/or defense of another person as a defense.
Evidence in support of this defense should be considered by you in determining whether
the State has met its burden of proving that the defendant is guilty. The State's burden of
proof does not shift to the defendant." See PIK Crim. 4th 51.050.

This court considered an argument similar to Buck-Schrag's in State v. Staten, 304
Kan. 957, 963, 377 P.3d 427 (2016). There, the defendant was charged with aggravated
battery but argued self-defense justified his actions. The district court instructed the jury
that the defendant was permitted to use force against another individual if he had a
subjective and objectively reasonable belief that such force was necessary. Regarding the
State's burden of proof, it instructed the jury:

17
 "'The State has the burden to prove the defendant is guilty. The defendant is not required
to prove he is not guilty. You must presume that he is not guilty unless you are convinced
from the evidence that he is guilty.

"'The test you must use in determining whether the defendant is guilty or not guilty is
this: If you have a reasonable doubt as to the truth of any of the claims required to be
proved by the State, you must find the defendant not guilty. If you have no reasonable
doubt as to the truth of any of the claims required to be proved by the State, you should
find the defendant guilty.'" Staten, 304 Kan. at 963.

Staten argued that the instructions were clear error because the court failed to
instruct the jury that the State had a burden to prove beyond a reasonable doubt that his
actions were not justified by self-defense—the same argument Buck-Schrag makes here.

This court observed that the trial court had not offered the standard "clarifying"
PIK instruction on affirmative defenses. It then discussed a line of cases in which this
court considered the same scenario and concluded there was no clear error because
"everything necessary for the jury to consider the burden of proof was contained within
the instructions." Staten, 304 Kan. at 966 (examining State v. Osbey, 238 Kan. 280, 285-
86, 710 P.2d 676 [1985]; State v. Crabtree, 248 Kan. 33, 805 P.2d 1 [1991]; State v.
Sperry, 267 Kan. 287, 978 P.2d 933 [1999]; State v. Cooperwood, 282 Kan. 572, 147
P.3d 125 [2006]).

The Staten court noted that the line of cases had all been decided before the
enactment of K.S.A. 2019 Supp. 21-5108, when the statutory scheme "did not explicitly
refer to the burden of proof when the defendant assert[ed] an affirmative defense."
Rather, "it simply explained the presumption of innocence and the requirement of burden
of proof beyond a reasonable doubt . . . ." Staten, 304 Kan. at 965. Since those cases had

18
been decided, the Legislature had, in K.S.A. 2019 Supp. 21-5108, "codified the caselaw
requirement that, once a defendant properly asserts a self-defense affirmative defense, the
State must disprove that defense beyond a reasonable doubt." Staten, 304 Kan. at 965.
But the Staten court held that the new legislation did not constitute a change in law that
altered the State's burden of proof or the elements it was required to prove. Consequently,
the cases decided under the previous statutory scheme were still authoritative. The Staten
court ultimately held that the failure to give the affirmative defense PIK instruction
amounted to error, but that it was not clear error based on "the instructions as a whole as
well as the nature of the evidence supporting Staten's claim of self-defense." Staten, 304
Kan. at 967.

The trial court here offered the PIK instruction that was missing in Staten. This
court has explained, while "[t]he use of PIK instructions is not mandatory," it is "strongly
recommended" because they "have been developed by a knowledgeable committee to
bring accuracy, clarity, and uniformity to jury instructions." State v. Dunn, 249 Kan. 488,
492, 820 P.2d 412 (1991).

Moreover, the court gave the jury additional instructions that helped ensure it
accurately conveyed the law. As we have noted before, we do not consider an instruction
in isolation, but "as a whole . . . to see whether it properly and fairly stated the law as
applied to the facts of the case and could not have reasonably misled the jury." State v.
Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014). In these additional instructions, the trial
court explicitly detailed the State's burden and told the jury that Buck-Schrag was
permitted to act in defense of himself or another under certain circumstances:

"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty unless you are

19
 convinced from the evidence that he is guilty. The test you must use in determining
whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to
the truth of any of the claims required to be proved by the State, you must find the
defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims
required to be proved by the State, you should find the defendant guilty.

....

"The defendant claims his use of force was permitted as self-defense and/or the
defense of another person. A defendant is permitted to use physical force against another
person, including using a weapon, when and to the extent that it appears to him and he
reasonably believes such physical force is necessary to defend himself or someone else
against the person's imminent use of unlawful force. Reasonable belief requires both a
belief by the defendant and the existence of facts that would persuade a reasonable person
to that belief.

....

"The defendant raises self-defense and/or defense of another person as a defense.
Evidence in support of this defense should be considered by you in determining whether
the State has met its burden of proving that the defendant is guilty. The State's burden of
proof does not shift to the defendant."

The instructions in this case informed the jury the State had to prove the defendant
guilty beyond a reasonable doubt, directed the jury to consider the asserted self-defense
theory when deciding whether the State has met its burden of proof, and advised the jury
that the burden of proof did not shift to the defendant based on this defense. Arguably,
the instructions could have been clearer if they parroted the language of the statute by
explicitly informing the jury that the State had to disprove the self-defense theory beyond

20
a reasonable doubt. But Buck-Schrag points to no authority suggesting that instructions
must follow the exact language of the statute.

The instructions, as a whole, fairly and accurately stated the law. Consequently,
they were not erroneous.

Cumulative Error

Buck-Schrag argues cumulative error warrants reversal. Because he has shown no
error, this argument fails.

Identical Offense Doctrine

Buck-Schrag argues that the district court should have imposed a lower sentence
based on the alternative conviction of reckless second-degree murder because, in his case,
reckless second-degree murder is identical to felony murder.

Buck-Schrag did not raise this challenge below. He argues this court may review it
for the first time under K.S.A. 2019 Supp. 21-6820(e)(3).

K.S.A. 2019 Supp. 21-6820(e)(3) provides that "in any appeal from a judgment of
conviction, the appellate court may review a claim that: . . . (3) the sentencing court
erred in ranking the crime severity level of the current crime or in determining the
appropriate classification of a prior conviction or juvenile adjudication for criminal
history purposes."

21
 We recently rejected the argument that K.S.A. 2019 Supp. 21-6820(e)(3) requires
an appellate court to review an identical offense argument for the first time on appeal. In
State v. Gray, 311 Kan. 164, 459 P.3d 165 (2020), the defendant argued for the first time
on appeal that the court should have sentenced him for intentional second-degree murder
instead of his crime of conviction—premeditated first-degree murder—because those are
identical offenses. Gray argued this court should review his unpreserved claim under
K.S.A. 2019 Supp. 21-6820(e)(3). We disagreed, because Gray was "not challenging the
classification of the crime of conviction." Rather, he was challenging "the district court's
authority to sentence him based on the crime of conviction." 311 Kan. at 170.

Like the defendant in Gray, Buck-Schrag is not challenging the classification of
his crime of conviction. He challenges the court's authority to impose the sentence it did
based on that conviction. K.S.A. 2019 Supp. 21-6820(e)(3) does not require that we
review his claim for the first time on appeal. We decline to do so.

Attorney Fees

Buck-Schrag argues the district court erred when it ordered him to pay $7,000 in
attorney fees.

We perform an unlimited review of whether a district court comported with
statutes governing the assessment of attorney fees. We review the amount of attorney fees
imposed for an abuse of discretion. State v. Hernandez, 292 Kan. 598, 609, 257 P.3d 767
(2011).

22
 K.S.A. 22-4513 provides:

"(a) If the defendant is convicted, all expenditures made by the State board of
indigents' defense services to provide counsel and other defense services to such
defendant or the amount allowed by the board of indigents' defense reimbursement tables
as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed
against the defendant and shall be enforced as judgments for payment of money in civil
cases.

"(b) In determining the amount and method of payment of such sum, the court
shall take account of the financial resources of the defendant and the nature of the burden
that payment of such sum will impose."

Here, the State requested $9,500.00 in attorney fees. The court ordered Buck-
Schrag to pay $7,000.00 after making the following comments:

"The Court is aware that Mr. Buck-Schrag is able-bodied. The Court believes
that he will be employable and employed and given a job within the prison system. And
the amount of $243 per year, that was described, that even the higher amount suggested
by the State is an amount that is reasonable recognizing resources, recognizing burden."

Buck-Schrag argues that the court failed to fulfill the requirements of this statute
because it did not consider his financial resources or the burden the fees would place on
him. Buck-Schrag leans heavily on State v. Robinson, 281 Kan. 538, 132 P.3d 934
(2006). In Robinson, this court examined the requirements of K.S.A. 22-4513. It held
that, under this statute,

"the sentencing court, at the time of initial assessment, must consider the financial
resources of the defendant and the nature of the burden that payment will impose

23
 explicitly, stating on the record how those factors have been weighed in the court's
decision. Without an adequate record on these points, meaningful appellate review of
whether the court abused its discretion in setting the amount and method of payment of
the fees would be impossible." Robinson, 281 Kan. at 546.

In State v. Johnson, 286 Kan. 824, 852, 190 P.3d 207 (2008), this court vacated an
order imposing attorney fees when the court failed to follow the directive in Robinson. In
assessing fees, the sentencing court said only that costs would be assessed to the
defendant. This court vacated the order and remanded the case with directions to consider
the defendant's ability to pay and any financial burden the fees would impose. 286 Kan.
at 852.

This court also vacated an order for attorney fees in State v. Stevens, 285 Kan.
307, 330-31, 172 P.3d 570 (2007). There, the sentencing court ordered the defendant to
generally pay attorney fees and then inquired about his monthly income. After learning it
was $800 per month, the court ordered the defendant to pay $50 monthly. The court
never imposed a total amount of fees. This court remanded the case to the district court
with directions to determine a total amount of attorney fees and to consider what amount
the defendant could pay.

The sentencing court here did more than the courts in Johnson and Stevens. It
noted it was ordering Buck-Schrag to pay $7,000 because even the higher amount would
have been reasonable based on Buck-Schrag's resources and burden. This indicates that
the court considered the financial burden attorney fees would place on Buck-Schrag.
Consequently, the court adequately satisfied the requirements of K.S.A. 22-4513(b) and
the directive in Robinson. We find no error.

24
 The convictions and the order for attorney fees are affirmed.

WILSON, J., not participating.

MICHAEL A. RUSSELL, District Judge, assigned.1
FRANCIS E. MEISENHEIMER, District Judge, assigned.2

________________________________________

1
REPORTER'S NOTE: District Judge Russell was appointed to hear case No. 121,203
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Justice Carol A. Beier.
2
REPORTER'S NOTE: District Judge Meisenheimer was appointed to hear case No.
121,203 vice Justice Wilson under the authority vested in the Supreme Court by art. 3, §
6(f) of the Kansas Constitution.

25