No. 121,865
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHAMEKE CAESAR STRONG,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2018 Supp. 21-5705(e) does not instruct the jury it must infer the
defendant intended to distribute a drug if the defendant possessed a certain amount. The
State retains its burden of persuasion. Instead, the provision creates a permissive
inference telling the jury it may infer intent to distribute if the State proves the defendant
possessed the requisite weight of the drug.
2.
K.S.A. 2018 Supp. 21-5705(e) does not violate the Due Process Clause and is
facially constitutional.
Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed September 10, 2021.
Affirmed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.
David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt,
attorney general, for appellee.
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Before BUSER, P.J., POWELL and HURST, JJ.
POWELL, J.: While executing a search warrant at a house located within 1,000 feet
of a school, Riley County police encountered Shameke Caesar Strong emerging from a
bedroom in the house. A search of this bedroom yielded over 11 grams of
methamphetamine. Strong was subsequently charged with and convicted of possession
with intent to distribute methamphetamine within 1,000 feet of a school and possession of
drug paraphernalia. Strong now appeals his possession with intent to distribute
conviction, arguing the rebuttable presumption in K.S.A. 2018 Supp. 21-5705(e)—the
statute which allows the jury to infer that Strong intended to distribute methamphetamine
because he possessed 3.5 or more grams of methamphetamine—is unconstitutional. He
also argues the jury instruction concerning this presumption was erroneous. For reasons
we more fully explain below, we conclude K.S.A. 2018 Supp. 21-5705(e) is
constitutional and the district court's jury instruction was legally appropriate. Finally, we
decline to consider Strong's constitutional challenges to his sentence raised for the first
time on appeal. Thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 31, 2018, police executed a search warrant on a home in Manhattan,
Kansas, located within 1,000 feet of a school. During the search, Strong emerged from a
bedroom, surprising police, who did not know he was at the house. Police searched the
bedroom Strong exited and found mail addressed to Strong at a different address;
cigarettes; lighters; a digital scale; two plastic baggies inside a black case, with one
baggie containing 1.4 grams of methamphetamine and the other with 10.24 grams of
methamphetamine; and 15 to 20 empty plastic baggies.
The State charged Strong with possession of methamphetamine with intent to
distribute within 1,000 feet of school property, in violation of K.S.A. 2018 Supp. 21-
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5705(a)(1), (d)(3)(C), and (d)(5); and possession of drug paraphernalia, in violation of
K.S.A. 2018 Supp. 21-5709(b)(1) and (e)(2)(A).
At trial, Detective Michael Parr, one of the officers involved in the search of the
home, testified that based on his training and experience, most methamphetamine users
have small supplies around one gram that can be broken into smaller doses. He testified
people who possess larger amounts usually are looking to sell the methamphetamine.
Strong testified he did not live at the house police searched but was only there to
use the shower due to problems with the water main at his house. Because he was
planning to shower, Strong brought a bag with clothes and hygiene products and included
his mail. Strong claimed he was unaware of any illegal drugs at the house.
The jury convicted Strong on both counts, and the district court sentenced him to
186 months in prison.
Strong timely appeals.
I. IS K.S.A. 2018 SUPP. 21-5705(e)'S REBUTTABLE PRESUMPTION
UNCONSTITUTIONAL?
Strong argues the rebuttable presumption contained in K.S.A. 2018 Supp. 21-
5705(e) is facially unconstitutional because it creates a mandatory presumption relieving
the State from its burden to prove a defendant guilty beyond a reasonable doubt. The
State counters the statute merely creates a permissive presumption which is applicable
when a defendant possesses a certain amount of a drug, a presumption that the jury may
reject.
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Standard of Review
Determining the constitutionality of a statute is a legal question reviewed de novo.
A presumption of constitutionality exists, and courts "'must resolve all doubts in favor of
a statute's validity. Further, [a court] must interpret a statute in a manner that renders it
constitutional if there is any reasonable construction that will maintain the legislature's
apparent intent. [Citations omitted.]'" State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968
(2018).
"When interpreting a statute, a court first attempts to discern legislative intent through the
statutory language, giving common words their ordinary meanings. Whaley v. Sharp, 301
Kan. 192, 196, 343 P.3d 63 (2014). When the language is plain and unambiguous, the court
must give effect to its express language, rather than determine what the law should be. The
court will not speculate about legislative intent and will not read the statute to add
something not readily found in it. Graham v. Doktor Trucking Group, 284 Kan. 547, Syl.
¶ 3, 161 P.3d 695 (2007). It is only when the statute's language is unclear or ambiguous
that the court employs the canons of statutory construction, consults legislative history, or
considers other background information to ascertain its meaning. Whaley, 301 Kan. at
196." Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019).
Preservation
Strong acknowledges he did not raise this issue before the district court but argues
it meets an exception to the preservation requirement. Generally, a party may not raise
constitutional issues for the first time on appeal, but there are exceptions to that general
rule: (1) if the new issue involves only a legal question arising from proven or admitted
facts and is finally determinative of the case; (2) if consideration of the issue is necessary
to serve the ends of justice or prevent a denial of fundamental rights; and (3) if the district
court was right for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036
(2019). Strong argues the first two exceptions apply here.
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Another panel of this court determined it could hear a challenge to K.S.A. 2019
Supp. 21-5705(e) for the first time on appeal under the first exception. See State v.
Holder, No. 120,464, 2020 WL 6108359, at *3 (Kan. App. 2020) (unpublished opinion),
rev. granted 313 Kan. ___ (April 23, 2021); see also State v. Hinnenkamp, 57 Kan. App.
2d 1, 5, 446 P.3d 1103 (2019) (holding facial constitutional challenge fits within first
exception). Whether K.S.A. 2018 Supp. 21-5705(e) is facially unconstitutional is a purely
legal question involving no disputed facts, and a finding of unconstitutionality would be
finally determinative of this case. Thus, we will consider the merits of Strong's argument.
K.S.A. 2018 Supp. 21-5705(e)'s Constitutionality
The State charged Strong with possessing at least 3.5 grams but less than 100
grams of methamphetamine within 1,000 feet of a school property under K.S.A. 2018
Supp. 21-5705(a)(1), (d)(3)(C), and (d)(5). Strong possessed over 11 grams of
methamphetamine. This amount triggered a rebuttable presumption of intent to distribute.
See K.S.A. 2018 Supp. 21-5705(e)(2). Strong argues the statutory presumption that he
possessed the methamphetamine with the intent to distribute based on its weight
unconstitutionally relieved the State of its burden to prove beyond a reasonable doubt he
intended to distribute.
K.S.A. 2018 Supp. 21-5705(e)(2) reads, in relevant part:
"In any prosecution under this section, there shall be a rebuttable presumption of
an intent to distribute if any person possesses the following quantities of controlled
substances or analogs thereof:
....
"(2) 3.5 grams or more of heroin or methamphetamine."
5
Basing its instruction on the Pattern Instructions of Kansas (PIK) Crim. 4th 57.022
(2013 Supp.), the district court instructed the jury on this presumption as follows:
"You may presume that a person had the intent to distribute methamphetamine
when the person possessed 3.5 grams or more. You may consider this presumption along
with all other evidence in the case. You may accept or reject it in determining whether
the State has met the burden to prove the required criminal intent of the Defendant. This
burden never shifts to the Defendant."
Strong alleges K.S.A. 2018 Supp. 21-5705(e) is facially unconstitutional because
it creates a mandatory rebuttable presumption which is forced upon the jury. To support
his argument, Strong relies on Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L.
Ed. 2d 344 (1985).
In Francis, the United States Supreme Court addressed the different types of
statutory presumptions, indicating that the threshold inquiry in these cases is determining
the nature of the presumption—whether it is a mandatory presumption or permissive
inference. 471 U.S. at 313-14. "A mandatory presumption instructs the jury that it must
infer the presumed fact if the State proves certain predicate facts. A permissive inference
suggests to the jury a possible conclusion to be drawn if the State proves predicate facts,
but does not require the jury to draw that conclusion." 471 U.S. at 314. Mandatory
presumptions "violate the Due Process Clause if they relieve the State of the burden of
persuasion on an element of an offense. . . . A permissive inference does not relieve the
State of its burden of persuasion because it still requires the State to convince the jury"
that it should infer the conclusion based on the proven predicate facts. 471 U.S. at 314.
"A permissive inference violates the Due Process Clause only if the suggested conclusion
is not one that reason and common sense justify in light of the proven facts before the
jury." 471 U.S. at 314-15. While the analysis focuses initially on the specific language
challenged, if that portion could be reasonably understood as creating a presumption that
relieves the State of its burden on an element of offense, the challenged language must be
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considered in context of all the instructions, which might explain the language "to the
extent that a reasonable juror could not have considered the charge to have created an
unconstitutional presumption." 471 U.S. at 315. The Francis Court explained that while a
mandatory rebuttable presumption might be "less onerous" on the defendant, it is still
unconstitutional if it shifts the burden of persuasion on a fact from the State. 471 U.S. at
317.
Our Supreme Court has held: "'[A] rebuttable statutory presumption constitutes a
rule of evidence . . . .' When the presumption favors the State, 'the jury must be clearly
instructed as to the nature and extent of the presumption and that it does not shift the
burden of proof to the defendant.' [Citations omitted.]" State v. Macomber, 309 Kan. 907,
922, 441 P.3d 479 (2019).
"The most common evidentiary device is the entirely permissive inference or
presumption, which allows—but does not require—the trier of fact to infer the elemental
fact from proof by the prosecutor of the basic one and which places no burden of any
kind on the defendant. In that situation, the basic fact may constitute prima facie evidence
of the elemental fact. . . . Because this permissive presumption leaves the trier of fact free
to credit or reject the inference and does not shift the burden of proof, it affects the
application of the 'beyond a reasonable doubt' standard only if, under the facts of the case,
there is no rational way the trier could make the connection permitted by the inference.
[Citations omitted.]" County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157, 99
S. Ct. 2213, 60 L. Ed. 2d 777 (1979).
Several panels of our court have been confronted with challenges to the
constitutionality of K.S.A. 2020 Supp. 21-5705(e)(2), and all have avoided squarely
addressing the issue for various reasons. In State v. Slusser, No. 121,460, 2020 WL
7636318 (Kan. App. 2020) (unpublished opinion), petition for rev. filed January 26,
2021, Slusser attacked K.S.A. 2019 Supp. 21-5705(e)(2) as facially unconstitutional for
creating a rebuttable presumption that a person possessing 3.5 grams or more of
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methamphetamine intended to distribute the drug. The panel found it did not need to
address the constitutionality of K.S.A. 2019 Supp. 21-5705(e)(2)'s presumption because
the jury instruction provided was based on the PIK and the jury was not informed of the
presumption; therefore, the jury could not have considered it when convicting Slusser.
The panel held that even if the statutory presumption were constitutionally deficient,
Slusser could not have been prejudiced in any way. 2020 WL 7636318, at *2.
In Holder, 2020 WL 6108359, at *4, Holder, citing Francis for support, argued
K.S.A. 2019 Supp. 21-5705(e) created an unconstitutional mandatory presumption and,
"apart from any related instruction," was facially unconstitutional for violating due
process by not requiring the State to prove to the jury every element beyond a reasonable
doubt. The panel explained Holder could not "advance a facial challenge to the statutory
presumption without first showing that the related jury instruction issued a mandatory
presumption." 2020 WL 6108359, at *4. The panel held the statute must be examined
together with the related jury instruction. The district court followed PIK Crim. 4th
57.020 (2014 Supp.) for the jury instruction, and the panel held the language in the jury
instruction was permissive, "suggesting a possible conclusion but not requiring the jury to
draw that conclusion." 2020 WL 6108359, at *5-6. Because the jury instruction contained
a permissive instruction, the panel found Holder lacked standing to advance a facial
challenge. 2020 WL 6108359, at *5.
Finally, in State v. Reisinger, No. 119,791, 2021 WL 2171093 (Kan. App. 2021)
(unpublished opinion), rev. denied 313 Kan. ___ (August 31, 2021), Reisinger brought an
as-applied constitutional challenge to K.S.A. 2020 Supp. 21-5705(e)(2) but corrected the
deficiency in Holder and challenged the jury instruction. The panel held Reisinger's
argument was unpersuasive because any presumption in the statute was not relied on at
trial, as the jury was never instructed that it must presume Reisinger intended to distribute
methamphetamine based on the amount he possessed. 2021 WL 2171093, at *6. The jury
instruction, based on the PIK, did not mandate an unconstitutional evidentiary
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presumption but "permitted an inference for the jury to consider and apply to the facts of
the case." 2021 WL 2171093, at *6. The panel ultimately did not consider the
constitutionality of K.S.A. 2020 Supp. 21-5705(e)(2) because Reisinger could not show
the statute had been unconstitutionally applied to him. 2021 WL 2171093, at *6.
While the other panels found the defendants could not challenge the statute
because the jury instruction did not inform the jury of the statutory presumption, here,
Instruction No. 6—although its wording is not a carbon copy of K.S.A. 2018 Supp. 21-
5705(e)(2)—informed the jury it may presume a person had the intent to distribute if the
person possessed 3.5 grams or more of methamphetamine. See PIK Crim. 4th 57.022
(words "presumption" or "presume" not present). The jury instruction's discussion of the
presumption of intent to distribute placed the statutory provision's presumption in front of
the jury. Thus, unlike in the cases discussed above, the question of K.S.A. 2018 Supp. 21-
5705(e)'s constitutionality is squarely before us.
We agree with the reasoning of another panel of this court that addressed the
mandatory versus permissive presumption issue in the context of marijuana possession
under K.S.A. 2014 Supp. 21-5705(e)(1). In State v. Jimenez, No. 111,659, 2015 WL
5036738 (Kan. App. 2015) (unpublished opinion), the panel held:
". . . [T]he presumption set forth in K.S.A. 2014 Supp. 21-5705(e)(1) is
permissive in nature and merely suggests the existence of a relationship between a fact
proved and a fact presumed. Permissive presumptions are rebuttable and do not require
the jury to convict after the State has made a prima facie case. Notably, a permissive
presumption affirmatively permits the jury to return a verdict in favor of the defendant
even if the defendant fails to introduce any evidence." 2015 WL 5036738, at *4.
Although Jiminez dealt with possession of marijuana under K.S.A. 2014 Supp. 21-
5705(e)(1) rather than methamphetamine under (e)(2), the relevant language of K.S.A.
2018 Supp. 21-5705(e)—"there shall be a rebuttable presumption of an intent to
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distribute"—remains the same if the defendant possesses a certain weight of the drug.
This presumption is permissive in nature. See State v. Haremza, 213 Kan. 201, 203-04,
515 P.2d 1217 (1973) ("Statutory presumptions are ordinarily rebuttable. . . . [They do]
not alter the ultimate burden of proof resting upon the prosecution."). Unlike the
mandatory presumptions discussed in Francis, 471 U.S. at 314, K.S.A. 2018 Supp. 21-
5705(e) does not instruct the jury it must infer that the defendant intended to distribute
the drug if the defendant possessed a certain amount. The State retains its burden of
persuasion. Instead, the provision creates a permissive inference telling the jury it may
infer intent to distribute if the State proves the defendant possessed the requisite weight
of the drug. K.S.A. 2018 Supp. 21-5705(e) does not violate the Due Process Clause
because this inference is one justified by reason and common sense. See 471 U.S. at 314-
15. K.S.A. 2018 Supp. 21-5705(e) is facially constitutional.
II. WAS INSTRUCTION NO. 6 LEGALLY INAPPROPRIATE?
Strong also argues that even if we find K.S.A. 2018 Supp. 21-5705(e)
constitutional, Instruction No. 6 was legally inappropriate because it does not accurately
state the law. Strong asserts Instruction No. 6 gave the jury a permissive mandate, rather
than a restrictive one as the statute requires.
Standard of Review
"'For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
10
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).'" State v. Woods, 301
Kan. 852, 876, 348 P.3d 583 (2015).
The first and last steps are interrelated because preservation of the issue affects the
reversibility inquiry. State v. Bolze-Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015).
When a party does not object to a jury instruction in front of the district court, we
review the instruction to determine whether it was clearly erroneous. K.S.A. 2020 Supp.
22-3414(3). For a jury instruction to be clearly erroneous, we must be firmly convinced
"'the jury would have reached a different verdict'" if the erroneous instruction had not
been given. State v. Carter, 305 Kan. 139, 163, 380 P.3d 189 (2016). The party claiming
clear error has the burden to show the error's existence. State v. McLinn, 307 Kan. 307,
318, 409 P.3d 1 (2018).
Invited Error
The State claims Strong invited any instructional error because Strong's counsel
agreed to Instruction No. 6 on the record, did not object to the instruction, and did not
object when the instruction was read to the jury. Our Supreme Court addressed this
contention in State v. McDaniel, 306 Kan. 595, 395 P.3d 429 (2017), where the State
argued the defendant invited error by agreeing to the wording of an instruction at trial.
The Supreme Court noted its precedents explain that "'[a] party must do more than simply
fail to object to a district court's proposed jury instruction to risk application of the
invited error doctrine.'" 306 Kan. at 615. The Supreme Court held that the defendant did
not challenge the district court's use of language he asked the court to use and did not
challenge the absence of language he asked the district court not to use; the defendant
only failed to object to the instructions as given. Thus, the invited error doctrine did not
apply. 306 Kan. at 615.
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Strong did not ask the district court to include or exclude certain language in
Instruction No. 6; he only failed to object to the instruction as given. Strong did not invite
error by his actions.
Analysis
To determine whether an instruction is legally appropriate, we determine whether
the instruction "'properly and fairly stated the law as applied to the facts of the case and
could not have reasonably misled the jury.'" State v. Bernhardt, 304 Kan. 460, 469, 372
P.3d 1161 (2016).
Instruction No. 6 reads:
"You may presume that a person had the intent to distribute methamphetamine
when the person possessed 3.5 grams or more. You may consider this presumption along
with all other evidence in the case. You may accept or reject it in determining whether
the State has met the burden to prove the required criminal intent of the Defendant. This
burden never shifts to the Defendant."
For comparison, K.S.A. 2018 Supp. 21-5705(e)(2) reads:
"In any prosecution under this section, there shall be a rebuttable presumption of
an intent to distribute if any person possesses the following quantities of controlled
substances or analogs thereof:
....
"(2) 3.5 grams or more of heroin or methamphetamine."
12
And PIK Crim. 4th 57.022 reads:
"If you find the defendant possessed (450 grams or more of marijuana) (3.5
grams or more of heroin) (3.5 grams or more of methamphetamine) (100 dosage units or
more containing insert name of controlled substance) (100 grams or more of insert name
of any other controlled substance), you may infer that the defendant possessed with intent
to distribute. You may consider the inference along with all the other evidence in the
case. You may accept or reject it in determining whether the State has met the burden of
proving the intent of the defendant. This burden never shifts to the defendant."
Instruction No. 6 fairly stated the law on K.S.A. 2018 Supp. 21-5705(e)(2)'s
rebuttable presumption because it was based on the PIK and accurately informed the jury
that a rebuttable presumption of intent to distribute exists under the law if a person
possesses 3.5 grams or more of methamphetamine. See State v. Butler, 307 Kan. 831,
847, 416 P.3d 116 (2018) (Supreme Court strongly recommends use of PIK instructions).
It also informed the jury it could choose to reject the evidentiary presumption. Because
K.S.A. 2018 Supp. 21-5705(e)(2) creates a permissive presumption, not a mandatory one
as Strong argues, the instruction accurately reflects the law. Moreover, the district court
correctly instructed the jury that the burden to prove criminal intent always remained
with the State and never shifted to Strong. Instruction No. 6 was legally appropriate.
III. DID THE USE OF STRONG'S CRIMINAL HISTORY TO INCREASE HIS SENTENCE
VIOLATE THE KANSAS AND UNITED STATES CONSTITUTIONS?
Strong's final two arguments can be addressed together. Strong argues the use of
his prior convictions to increase his sentence without requiring the State to prove them to
a jury beyond a reasonable doubt violated section 5 of the Kansas Constitution, as well as
the Sixth and Fourteenth Amendments to the United States Constitution. Whether the
Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., violates
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the Constitution is a legal question subject to de novo review. State v. Albano, 313 Kan.
638, 641, 487 P.3d 750 (2021).
The State notes Strong has not preserved these issues because he never raised
them below. The State is correct that constitutional grounds for reversal asserted for the
first time on appeal are not properly before us for review. State v. Daniel, 307 Kan. 428,
430, 410 P.3d 877 (2018). However, Strong argues we may consider the matters if
consideration of the issues involves only a legal question arising from proven or admitted
facts and is finally determinative of the case or consideration is necessary to serve the
ends of justice or to prevent the denial of fundamental rights. See Johnson, 309 Kan. at
995. But neither exception is applicable. First, resolution of Strong's constitutional
challenges to his sentence is not finally determinative of the case because if Strong is
correct, then the case would merely return to the district court for resentencing. Second,
Strong's fundamental rights are not at risk because our Supreme Court has previously
rejected Strong's claims.
The Kansas Supreme Court recently addressed whether the use of a defendant's
criminal history without a finding by a jury to increase the defendant's sentence violated
section 5 of the Kansas Constitution. In Albano, 313 Kan. at 657, our Supreme Court
held: "[T]he KSGA provisions authorizing the court to make criminal history findings
for purposes of imposing a sentence do not violate section 5 because such judicial
findings do not impair the traditional functions of the jury in Kansas criminal
proceedings."
Strong's challenge under the United States Constitution meets the same fate as his
Kansas Constitution challenge. Our Supreme Court has held that using a defendant's
criminal history to increase his sentence without proving such criminal history to a jury
beyond a reasonable doubt did not violate the Sixth and Fourteenth Amendments. State v.
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Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). The Supreme Court recently reaffirmed
that stance in State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737 (2018).
As we are duty-bound to follow our Supreme Court's decisions on these matters,
we decline to address Strong's constitutional challenges to his sentence. See State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (Court of Appeals duty-bound to
follow Supreme Court precedent); see also State v. Gray, 311 Kan. 164, 170, 459 P.3d
165 (2020) (no obligation to consider issue raised for first time on appeal even if
exception applies).
Affirmed.
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