State v. Acevedo

Arnold-Burger, J.:

Tomas Acevedo was advised by a manager and assistant manager at the Wal-Mart store in Garden City that he was not authorized to return to any Wal-Mart store. Two years later he returned to the same Wal-Mart store and committed a theft. He was convicted of aggravated burglary and theft. He raises several issues on appeal. First, he claims that the evidence presented at trial was insufficient to establish that he entered Wal-Mart without authorization. Because we find that the evidence was sufficient, this claim of error fails.

Next, Acevedo also raises three instructional errors and contends that the cumulative effect of these errors deprived him of a fair trial. First, he claims that court erred in failing to instruct the jury that aggravated burglary requires the State to prove that Acevedo knew he was unauthorized to enter Wal-Mart. We find that even if the requested instruction was both legally and factually sound, in light of the facts and the instruction that was given, the failure to give the requested instruction was harmless. Next, Acevedo claims the district court erred in failing to provide a limiting instruction regarding the jury’s use of evidence that he had committed crimes or had been involved in alleged criminal conduct in the past. Acevedo’s counsel not only failed to request such an instruc*656tion, but when asked by the trial judge counsel denied that one was needed. So that claim also fails. Third, Acevedo urges this court to find that tire use of the word “any” in the last sentence of the burden of proof instruction given by the trial court permitted the jury to convict him of the charged crimes without finding that the State proved each of the required elements beyond a reasonable doubt. But in State v. Herbel, 296 Kan. 1101, 1123-24, 299 P.3d 292 (2013), our Supreme Court rejected an identical argument, and we are duty bound to follow the Supreme Court.

Finally, we find that where there was no error there can be no cumulative error. Affirmed.

Factual and Procedural History

In April 2009, Daniel Fetty, a co-manager/shift manager of the Garden City Wal-Mart, and Aaron Kentner, an assistant manager at the same store, approached Acevedo in the store and read him a “Notification of Restriction from Property” form provided by Wal-Mart, which Fetty and Kentner referred to as a trespass form. Fetty read tire form to Acevedo as Kentner explained it to him. The form, which was admitted into evidence, read:

“Pursuant to law, Wal-Mart Stores, Inc. chooses to exercise its right to restrict entrance to individuals who have conducted themselves in a manner which is not acceptable to the community, including, but not limited to, shoplifting or destruction of property. It is deemed that the undersigned apprehended subject poses a threat to the future security of Wal-Mart facilities and properties, and therefore, is no longer welcome on Wal-Mart property, within its stores, or on any property under its immediate control. The undersigned apprehended subject is now on notice that should he / she choose to ignore this revocation of invitation and enter onto any Wal-Mart property, he / she places himself / herself in the position to be charged with Criminal Trespass pursuant to § 21-3721 of the Kansas Statutes Annotated. It is not necessary that die undersigned apprehended subject be caught in an illegal act, including, but not limited to, shoplifting or destroying property; the mere presence of such individual on the property is sufficient.
Acknowledgement
“I, [Thomas Acevedo] understand that as of the [18] day of -[April] , [2009] , I have been banned from all Wal-Mart property, and that to enter onto any such property places me at risk for arrest and prosecution for Criminal Trespass pursuant to § 21-3721 of the Kansas Statutes Annotated.” (Bracketed portions were handwritten by Fetty.)

*657Kentner tiren summarized the content of the form by telling Acevedo that he was no longer allowed on any Wal-Mart property. Fetty asked Acevedo to sign the form but did not offer Acevedo a copy of the form. Fetty testified that he would have made Acevedo a copy if Acevedo had requested one. Acevedo became angry, refused to sign the form, shouted some vulgar comments, and immediately left the store. The record does not disclose the reason Wal-Mart revoked Acevedo’s general permission to enter the store.

Nearly 2 years later, in February 2011, Kentner saw Acevedo in the same Garden City Wal-Mart and called the police to have Acevedo arrested for criminal trespass. Acevedo noticed Kentner and left foe store before the police arrived.

On March 26, 2011, Acevedo again entered foe Garden City Wal-Mart with two companions, while foe store was open for business. They visited foe sporting goods department before moving to foe tool aisle. Acevedo pulled a grinder wheel—valued at $2.88—from foe shelf, removed a box cutter from his pocket, and cut the package to remove foe wheel. He pocketed foe wheel, moved two aisles into the paint section, and discarded foe wheel packaging. Acevedo then walked to foe front of foe store, passing foe registers without stopping to pay for foe wheel, and exited foe store. Britt Fairbank and Jimmie Garcia, Wal-Mart security officers, confronted Acevedo just outside foe store. Fairbank told Acevedo, “ ‘Tomas, I need you to stop.’ ” Acevedo replied, “ ‘I got nothing, man,’ ” and continued to walk away. Acevedo entered a car located in front of the store, and he left foe parking lot in foe car. Garcia called foe police.

After Acevedo was arrested foe next day, he admitted that he had taken the wheel from its package but claimed that he had deposited foe wheel in the pharmacy department before leaving the store. When asked about the trespass warning, Acevedo said he knew nothing about it.

The State charged Acevedo with aggravated burglary and misdemeanor theft. Following a short trial on September 21, 2011, foe jury convicted Acevedo of both counts. Acevedo filed a motion for new trial, alleging error in Jury Instruction No. 3. He also filed a motion for a downward dispositional and durational departure *658sentence. At sentencing, the court denied both motions and sentenced Acevedo to serve a controlling term of 114 months in prison.

Acevedo filed a timely notice of appeal.

Sufficiency of the Evidence

Acevedo first challenges the evidence supporting his conviction for aggravated burglaiy. As defined by K.S.A. 21-3716, aggravated burglary is “knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony, theft or sexual battery therein.”

When a criminal defendant challenges the sufficiency of the evidence supporting a conviction, an appellate court examines the evidence and adopts reasonable inferences drawn from the evidence in a light most favorable to the State to determine whether a reasonable juror could conclude beyond a reasonable doubt that the defendant committed the offense in question. See State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012).

Focusing on the “without authority” element of the statute, Acevedo raises two arguments in support of his position that the aggravated burglary conviction cannot stand on the evidence presented at trial. First, he claims that Wal-Mart’s notification form was ineffective to revoke his implied authorization, as a member of the general public, to enter the store during normal business hours. Second, Acevedo contends that, even if the notification was sufficient, the State failed to present sufficient evidence that Acevedo was aware that his authority to enter Wal-Mart had been revoked.

The notification was legally adequate.

Initially noting that a store generally extends an implied authorization to members of the public to enter its building to shop, Acevedo cites statutes from many other jurisdictions that exclude buildings open to the public at the time of entry from the statutory definition of burglary or provide specific direction regarding the revocation of the implied authority. These foreign statutes are of limited value since they contain different language than the Kansas *659aggravated burglaiy statute. See State v. Hall, 270 Kan. 194, 202, 14 P.3d 404 (2000) (“We note the cases cited from those jurisdictions provide little support for the State’s position because their burglary statutes are significantly different from the Kansas burglary statute.”). The Kansas aggravated burglary statute contains no language that excludes from its purview a building generally open to the public, if entry into that building is unauthorized. See State v. Vinyard, 32 Kan. App. 2d 39, 41-42, 78 P.3d 1196 (2003) (without directly addressing the authority issue, court affirmed conviction for aggravated burglary when the defendant reentered a Dillard’s store after being instructed not to return on prior occasions), rev. denied 277 Kan. 927 (2004); State v. Fondren, 11 Kan. App. 2d 309, 316, 721 P.2d 284 (affirming conviction for aggravated burglary premised upon entry into a school building during school hours with the intent to steal because the defendant was not a member of the class of persons authorized to enter the school), rev. denied 240 Kan. 805 (1986); State v. Adams, No. 106,935, 2013 WL 4046396, at *5 (Kan. App. 2013) (unpublished opinion) (affirming evidence supporting aggravated burglary conviction where the defendant was previously told not to return to any Dillon’s store), petition for rev. filed September 9, 2013; State v. Moler, No. 98,221, 2008 WL 4416035, at *2-3 (Kan. App. 2008) (finding sufficient evidence to support conviction for aggravated burglary when the defendant entered a Wal-Mart store with the intent to steal after previously being informed that he was not allowed to enter any Wal-Mart store), rev. denied 288 Kan. 835 (2009).

Acevedo then contends that, if Kansas law permits revocation of implied authorization to enter a public building, Wal-Mart’s revocation of Acevedo’s implied authorization in this case was ineffective because tire revocation notice provided was legally deficient in three respects: (1) the notification was ambiguous because it did not designate a length of time that Acevedo would be prohibited from entering the store; (2) the State presented no evidence of Fetty’s and Kentner’s authority to ban Acevedo from Wal-Mart; and (3) the notification applied only to “the undersigned” and Acevedo never signed the form. These arguments all fail.

*660First, the notification was not ambiguous because it failed to specify a length of time for which Acevedo would remain excluded from Wal-Mart properties. The implied authority to enter a store’s premises is a species of license the owner of the property—in this case, Wal-Mart Stores, Inc.—extends to members of the public in order to transact business. See Dulchevsky v. Solomon, 136 Wash. 645, 650, 241 P. 19 (1925) (“There could be no question that Joseph Solomon, having charge of the store in which the tort was committed, had the right to withdraw the invitation held out to the public generally to enter the store, and revoke that license at any time as to any individual, and eject such individual, if he refused to leave when requested . . . The notification clearly imposed an indefinite revocation of Wal-Mart’s implied invitation to Acevedo to enter its stores, the implication being that Acevedo could never enter a Wal-Mart store until he was given express authority to do so. There is nothing ambiguous about an absolute revocation of a license to enter upon property. See Gilman v. Blocks, 44 Kan. App. 2d 163, 171, 235 P.3d 503 (2010) (“A license may be created by parol and is generally revocable at the will of the owner of the land in which it is to be enjoyed, by the death of the licensor, by conveyance of the lands to another, or by whatever would deprive the licensee of doing the acts in question or giving permission to others to do them.”); 25 Am. Jur. 2d, Easements and Licenses § 117, pp. 611-12 (“A license in real property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein. It is a personal, revocable, and unassignable privilege, conferred either by writing or parol.”).

Second, while Acevedo contends that the State failed to establish that Fetty and Kentner had the authority to ban Acevedo from entering all Wal-Mart properties, we find that the record does not support Acevedo’s position. Fetty testified he was co-manager of the Wal-Mart store in Garden City when he banned Acevedo from returning and Kentner was his assistant manager. Kentner testified that his responsibility included “security issues” among other things. At no time during the trial, closing arguments, or posttrial motions did Acevedo challenge the authority of Fetty or Kentner *661to ban him from Wal-Mart properties. And the reason is clear. Fetty and Kentner, acting as agents of tire corporation, could clearly revoke Acevedo’s license to enter the Garden City store they managed. See Lewis v. Montgomery Ward & Co., 144 Kan. 656, 660, 62 P.2d 875 (1936) (“[A] store owned by a corporation must be conducted through its agents, that such agents must not only be responsible for seeing that the merchandise to be sold is offered for that purpose and when sold the consideration received, but for seeing that the merchandise is not rendered unsalable by the acts of the customers, and that it is not stolen by shoplifters and thieves.”); Dulchevsky, 136 Wash. at 650. Whether their authority extended to Wal-Mart stores nationally is a question for another case. Acevedo did not seek to enter a different Wal-Mart store but returned to the store at which he had previously been banned.

Third, Acevedo points out that the notification form, by its terms, applied only to the “undersigned” and he never signed the form. While true, this argument seeks to place form above substance and is ultimately unavailing. The form clearly indicated that the notification applied to Acevedo. Kentner testified that die entire form was read to Acevedo. Acevedo was given the opportunity to sign the form, but he refused. Acevedo was identified in court as the person to whom the notification was given. Clearly, the notification was sufficient to inform Acevedo that his authority to enter the store had been revoked; the fact that the document was not signed by Acevedo goes to the weight of the evidence, not its admissibility. A signed document would have provided more probative evidence that Wal-Mart had communicated its revocation of Acevedo’s implied license to enter the store than the mere testimony of its managers. This does not mean the communication was ineffective without the signed document.

Even if the notification form was invalidated as the result of one or more of Acevedo’s arguments, the State produced evidence that Acevedo was orally advised that he was no longer welcome in any Wal-Mart property. There is no requirement in the aggravated burglary statute or otherwise that a person receive written notice of revoked authority to enter a particular building. Kansas caselaw *662supports an opposite conclusion. See, e.g., Fondren, 11 Kan. App. 2d at 316 (finding that authority to enter a building may be express or implied and may depend on the character of the building); Adams, 2013 WL 4046396, at *5 (oral notice of rescission, if proved, was sufficient to revoke general authority to enter store). This is consistent with general principles of license; a license is generally revocable at any time, and oral notice of the creation and/or termination of the license is adequate. See 25 Am. Jur. 2d, Easements and Licenses § 117, p. 612. Accordingly, this argument also lacks merit.

There was sufficient evidence that Acevedo knew that his authority to enter the store had been revoked.

Assuming that we find Wal-Mart’s notification legally valid, Acevedo alternatively argues that the State presented insufficient evidence that Acevedo was aware that his authority to enter the store had been revoked. Again, the appellate record fails to support Acevedo’s assertion.

Taken in a light most favorable to the State, the evidence showed that Fetty read the written notification to Acevedo and that Kent-ner told Acevedo that he was no longer welcome on any Wal-Mart property. Acevedo’s response to the notification is circumstantial evidence of his comprehension. He became angry, refused to sign the form, uttered some “vulgar” comments, and immediately left the store. Acevedo’s behavior upon seeing Kentner in the store in February 2011 provides further circumstantial evidence of Acevedo’s understanding that he lacked authority to enter tire store— he immediately exited the store, avoiding contact with Kentner. A conviction may be supported in whole or in part on circumstantial evidence. See State v. Suter, 296 Kan. 137, 150, 290 P.3d 620 (2012). Collectively, this evidence is sufficient to lead a rational juror to conclude that Acevedo was aware on March 26, 2011, that his implied authority to enter the store had been revoked.

Instructional Errors

The district court did not err in refusing to specifically instruct the *663 jury that aggravated burglary requires the State to prove that Acevedo knew he was unauthorized to enter Wal-Mart.

Next, Acevedo contends that the district court committed reversible error in using PIK Crim. 3d 59.18 instead of his proposed juiy instruction. The instruction at issue, Instruction No. 3, provided:

“In Count One, die defendant is charged with aggravated burglary. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant knowingly entered into or remained in a structure located at 3101 East Kansas Avenue, Garden City, Kansas, belonging to Wal-Mart.
“2. The defendant did so without authority.
“3. The defendant did so with the intent to commit a dieft therein.
“4. At the time there were human beings in the Wal-Mart store.
“5. This act occurred on the 26th day of March, 2011, in Finney County, Kansas.”

At trial, Acevedo requested an alteration to the foregoing PIK instruction that would add “did unlawfully, feloniously, knowingly and without authority” to each of the five elements. Acevedo emphasized the need to instruct the jury to find that he knew he lacked authority to enter the premises, but insisted that the additional language be appended to all five elements. Acevedo now contends that the jury instruction given at trial did not require that the jury consider whether he knew his entry into Wal-Mart was unauthorized, foreclosing on his opportunity to present his unawareness as a defense.

Although the use of PIK instructions is not required, it is strongly recommended, as those “ ‘ “ ‘instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.’ ” ’ ” State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). Absent a particular need under the facts of a case to alter or add to the PIK instructions, they should be followed. 289 Kan. at 67.

When considering a challenge to a jury instruction, an appellate court must undergo a multistep analysis. State v. Plummer, 295 Kan. 156, 160-63, 283 P.3d 202 (2012). First, the court must consider the reviewability of the issue and whether the party chai-*664lenging the instruction met the statutoiy requirements for objecting to a jury instruction. 295 Kan. at 160-61. Next, the court must determine whether the instruction is legally appropriate, including whether the instruction “fairly and accurately state [s] the applicable law.” 295 Kan. at 161. If the instruction is legally appropriate, the court must next consider whether it is also supported by the facts of the case. 295 Kan. at 161. Finally, if the instruction is both legally and factually sound and the district court failed to provide that instruction, the appellate court must consider whether tire error in failing to give the instruction is harmless. 295 Kan. at 162.

Here, Acevedo requested adding the phrase “did unlawfully, fe-loniously, knowingly and without authority” to all five elements of the PIK instruction. Adding this phrase to each of the five elements is clearly not legally sound. The term “unlawfully” fails to add any legal concept that is not already addressed by tire present elements. Similarly, adding “feloniously” to the instruction is unnecessaiy because it refers only to the penalty for the commission of aggravated burglary and is irrelevant to the jury’s determination of guilt. The addition of “knowingly” to some of the elements runs contrary to the law—Acevedo was not, for instance, required to know that people were present in the building. See State v. Watson, 256 Kan. 396, 401, 885 P.2d 1226 (1994). Because Acevedo’s proposed instruction was not legally sound, the district court did not err in refusing it. See Plummer, 295 Kan. at 161.

However, Acevedo emphasized at the time that he requested the altered instruction that the jury was required to find that he knew he lacked authority to enter Wal-Mart. Although his suggested alteration included other words, Acevedo adequately preserved his request to include the word knowingly in element 2— that is, the element addressing that Acevedo acted without authority. As such, the request to include knowingly in the instruction will be analyzed according to Plummer.

As the question regarding reviewability has been answered, we must first consider whether the inclusion of the word knowingly is legally sound. This court has only once fully considered a challenge to the absence of the word knowingly in PIK Crim. 3d 59.18. In Moler, the defendant challenged the PIK instruction, arguing that *665his unauthorized entry into a Wal-Mart could not “be inferred from his criminal intent and that he must have known he did not have authority.” 2008 WL 4416035, at *4. Utilizing a clearly erroneous standard, this court determined that the instruction as written was appropriate because it “mirrored the PIK instruction and set out the statutoiy elements for aggravated burglary.” 2008 WL 4416035, at *5. Based on this and the “overwhelming evidence” of the defendant's guilt, the court affirmed the district court verdict. 2008 WL 4416035, at *6-7. But under the facts of this case, the addition of the word knowingly before the phrase without authority does not necessarily make Acevedo's requested instruction legally unsound. In fact, we find such an instruction would have been legally sound here.

Next, we turn to whether Acevedo’s suggested instruction was factually sound. Because Acevedo’s primary defense was based on whether he knew that his entry into Wal-Mart was unauthorized, we will assume the requested instruction was factually sound.

Finally, if the instruction is both legally and factually sound and the district court failed to provide that instruction, the appellate court must consider whether the error in failing to give the instruction is harmless. Plummer, 295 Kan. at 162. Our Kansas Supreme Court has determined that, in order to find an error harmless, a court must be able to declare that the error “did not affect a party’s substantial rights, meaning it will not or did not affect the trial’s outcome.” State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). When the error implicates a statutory rather than a constitutional right, the party benefiting from the error must persuade the court that “there is no reasonable probability that the error affected the trial’s outcome in light of the entire record” for it to be deemed harmless. State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012). We find in this case that the failure to give the requested instruction was harmless for the following reasons.

The PIK instruction that was given was also legally sound.

The instruction that was given in this case, PIK Crim. 3d 59.18, was both legally and factually sound. The instruction mirrored the *666statutory language and properly set out the elements of aggravated burglary. In fact, the PIK instruction’s separation of the elements knowingly enter and without authority perfectly mirrors tire statutory language in K.S.A. 21-3716, which separates those same terms with the word and. Additionally, the lack of the word knowingly in front of without authority in the statutory language implies that the legislature intended for without authority to remain unmodified; if tire legislature thought the addition of the word knowingly was necessaiy, it likely would have added it as it did before tire word enter. See K.S.A. 21-3716.

Moreover, the word authority necessarily imbues the actor with an element of knowledge or awareness. Authority is defined as “[t]he right or permission to act.” Black’s Law Dictionary 152 (9th ed. 2009). When one acts without authority, then, he or she necessarily lacks the right or permission to perform that action. Embedded in this idea of permission is some level of knowledge; even if the permission is merely-implied, the actor is aware of that permission through the surrounding circumstances (such as knowing he or she may enter a business during its regular hours in order to conduct business transactions). See State v. Hall, 270 Kan. 194, 202, 14 P.3d 404 (2000). It is this implicit connection between the concept of authority and knowledge that renders the dissent’s concern about secret lists banning people from retail establishments unpersuasive: a reasonable jury could and likely would find a secret revocation of authority or permission insufficient to convict. Jury instructions should be examined through a prism of common sense and reasonableness, not remote, unrelated, or highly improbable hypotheticals. If the jury in this case had found that Acevedo was unaware that his authority to enter Wal-Mart had been revoked or that the revocation itself was ineffective, it could not have found he was without authority to enter because he would have still retained permission to be on the premises. In short, Acevedo’s knowledge of the ban is naturally linked to whether his entry into Wal-Mart on the day he was arrested was permissible.

Because the suggested addition of the word knowingly adds nothing to the existing instruction and does not presently modify the words without authority as found in K.S.A. 21-3716, tire ad*667dition of the word knowingly to modify without authority is not required to make the existing PIK instruction legally sound. PIK Crim. 3d 59.18. It is legally appropriate as is. The additional language requested is unnecessary surplusage. Because the instruction given did not vary in substance from the one requested, it was harmless for the court to refuse the requested instruction.

The instruction that was given did not limit defenses available to Acevedo so it was also factually sound.

The State notes in its brief that, in addition to correctly stating the elements of aggravated burglary, the PIK instruction that was given in this case did not limit the defenses available to Acevedo. Acevedo devoted much of his closing argument to whether he knew that his entry into Wal-Mart was unauthorized. The district court, at one point, did admonish Acevedo for using the phrase knowingly did so without authority in his closing argument, but that admonition did not foreclose Acevedo’s ability to raise the issue of his knowledge: he pointed out discrepancies in testimony by the State’s witnesses, challenged their recollection on certain issues, and noted the lack of tangible evidence regarding the ban.

Additionally, this court has already determined that the evidence presented at trial sufficiently proved each element of the crime charged, including the one regarding Acevedo’s lack of authority to enter Wal-Mart. The notification was read to Acevedo and another individual also summarized it for him. Acevedo reacted strongly and refused to sign the document, an indicator that he understood it. In February 2011, Acevedo fled Wal-Mart after noticing the man who banned him from Wal-Mart in 2009. Acevedo also fled Wal-Mart in March 2011 despite maintaining to security officers and the police that he had not taken anything from the store. The circumstances and behaviors leading up to Acevedo’s arrest hardly lend themselves to an innocent construction. We cannot conclude that the instruction given could have caused any confusion in the minds of the jurors. Accordingly, we find that there is no reasonable probability that the district court’s refusal to add the word knowingly to the jury instruction affected the trial’s outcome.

*668In sum, although it may not be error based upon the facts of a case to insert the term knowingly in front of the phrase without authority in the PIK instruction for aggravated burglary, the failure to do so does not render the PIK instruction erroneous as a matter of law. See State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) (holding that even though the reasonable doubt instruction given in the case was not the preferred instruction, it was not a misstatement of the law and therefore was legally appropriate). Under the facts of this case, any error in refusing Acevedo’s requested instruction was harmless.

The district court did not err in failing to give a limiting instruction regarding the use of prior-bad-act evidence.

Acevedo further claims tire district court erred in failing to provide a limiting instruction regarding the jury’s use of evidence that he had committed crimes or been involved in alleged criminal conduct in the past. He acknowledges that the instruction was not requested and, accordingly, argues for application of a clearly erroneous standard of review. The procedural hurdle to appellate review of this issue is greater than Acevedo proposes. Acevedo did not merely fail to request a limiting instruction; he affirmatively represented that he wanted no limiting instruction given.

At the instructions conference in this case, the district court addressed both parties and asked, “Do you have any other requested instructions at all? Do we have any limiting instructions we need or any lesser includeds or anything of that sort?” (Emphasis added.) Both parties responded in the negative. Acevedo’s decision not to request a limiting instruction cannot form the basis of an appellate issue when the district court complied with his request not to give the instruction. See State v. Hargrove, 48 Kan. App. 2d 522, 532-34, 293 P.3d 787 (2013) (discussing application of invited error rule to jury instructions and noting that a criminal defendant is generally bound by tire strategy decisions of counsel); Adams, 2013 WL 4046396, at *9 (Atcheson, J., dissenting) (“Adams would have been entitled to a limiting instruction, but defense counsel reasonably could have concluded an instruction would only have called attention to die evidence and the impermissible inference.”). Under the *669invited error doctrine, an appellate court will not consider claims of error prompted or invited by the appellants before the district court. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011); Hargrove, 48 Kan. App. 2d at 531. Accordingly, we decline to review this issue.

The district court did not erroneously instruct the jury on the State’s burden of proof.

Next, Acevedo challenges the district court’s reasonable doubt instruction. The challenged instruction, Instruction No. 2, provided:

“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.”

Acevedo contends that the use of the word “any” in tire last sentence of the instruction permitted the juiy to convict him of the charged crimes without finding that the State proved each of the required elements beyond a reasonable doubt. But Acevedo acknowledges that he did not object to the instruction at trial. Accordingly, appellate review of the challenged reasonable doubt instruction is necessarily circumscribed by Acevedo’s failure to object to the instruction at trial. See K.S.A. 22-3414(3); State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012).

Nevertheless, the Kansas Supreme Court has ruled that instructions identical to the challenged instruction here were not clearly erroneous. See State v. Waggoner, 297 Kan. 94, 98-99, 298 P.3d 333 (2013); Herbel, 296 Kan. at 1123-24. Our Supreme Court found that the use of the word “any” in the last sentence of the jury instruction did not create any confusion and was legally appropriate. Moreover, if any confusion did occur it was cleared up by the jury instructions that set out the individual elements for each of the crimes charged, which all contained the following lan*670guage: “ ‘To establish this charge, each of the following claims must be proved.’ ” 296 Kan. at 1123.

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Herbel was reaffirmed in State v. Smyser, 297 Kan. 199, 205, 299 P.3d 309 (2013). Herbel is dispositive of Acevedo’s argument. The district court’s use of this burden of proof jury instruction was legally appropriate and Jury Instruction No. 3 regarding the individual elements of aggravated burglary included the following language: “To establish this charge, each of the following claims must be proved.” Therefore, the district court did not err when it gave tire above jury instruction on the State’s burden of proof.

The instruction was not clearly erroneous and, accordingly, this claim of error also fails.

Cumulative Error

Acevedo argues that, even if each of alleged errors was not sufficient alone to demand reversal, the cumulative effect of the errors deprived him of a fair trial and constituted a basis for granting him a new trial. The difficulty with Acevedo’s position is that he has not successfully established any error. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because Acevedo’s alleged errors do not constitute errors, then the cumulative error doctrine does not apply in his case.

Affirmed.

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