State v. Couch

NOT DESIGNATED FOR PUBLICATION

No. 122,156

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL WAYNE COUCH,
Appellant.

MEMORANDUM OPINION

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed August 19, 2022.
Affirmed in part and vacated in part.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Tamara S. Hicks, assistant county attorney, Susan Hillier Richmeier, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., HILL and ISHERWOOD, JJ.

PER CURIAM: A jury convicted Michael Wayne Couch of three counts of
aggravated criminal sodomy, one count of rape, one count of aggravated kidnapping, one
count of aggravated burglary, and one count of aggravated battery. The district court
sentenced Couch to 1,306 months in prison and ordered him to pay $3,962.81 in
restitution, as well as $31,612.50 in attorney fees to the Board of Indigents' Defense
Service (BIDS) and other court costs and fees. Couch appeals his convictions and
sentence, arguing: (1) The district court abused its discretion by not allowing him to
represent himself at trial; (2) the evidence of aggravated kidnapping was insufficient to

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convict; (3) the district court should have instructed the jury on a lesser included offense
of aggravated battery; (4) cumulative error deprived him of a fair trial; (5) Kansas'
criminal restitution statutes violate section 5 of the Kansas Constitution; (6) the
restitution statutes violate Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000); and (7) the district court erred when it ordered him to pay BIDS
attorney fees.

With the exception of his claim pertaining to BIDS fees, the issues presented do
not entitle Crouch to the relief he seeks. Thus, we affirm his convictions, sentence, and
restitution obligation, but we vacate the district court's imposition of the BIDS attorney
fees.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of December 18, 2018, H.D. ran several errands around Garden
City. She briefly stopped at Walmart around 10:30 a.m. and then drove home. Michael
Wayne Couch noticed H.D. leaving the store and followed her home.

Soon after H.D. walked into her house, she heard the garage entry door open, so
she walked over to close it. When she reached the door, however, Couch, who was a
stranger to her, barged into the home, pinned H.D. against the kitchen sink, and held a
knife to her throat. H.D. fell to the ground screaming for help, but Couch threatened to
harm her if she continued yelling. About that time, H.D. and Couch both noticed cuts to
H.D.'s hands, which prompted Couch to spew a series of expletives. He allowed H.D. to
clean and bandage her wounds and, after she did so, Couch grabbed her arm and dragged
her from the kitchen, down the hallway, and into the master bedroom.

Couch shoved H.D. onto the master bed, unbuckled her belt, then pulled her pants
and underwear off. He demanded that H.D. perform oral sex on him but became

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frustrated when he could not maintain an erection, so he forced his fingers into her vagina
instead and threatened her with a knife if she was noncompliant with his demands. Couch
then penetrated H.D.'s vagina with his penis. At this point in the attack, H.D. noticed
three swastika tattoos on Couch's torso and had a clear view of his face and clothing.
Unable to maintain an erection Couch grew increasingly frustrated, so he retrieved H.D.'s
toothbrush from her bathroom and forcefully anally sodomized H.D. with it. H.D.
pleaded for Couch to stop so he inexplicably directed her into the bathroom and put
lotion on her hand. He then forced her back into the bedroom, threatened to inflict harm
on her if she failed to "finish the job," and again demanded that she perform oral sex on
him.

Couch told H.D. that his name was Michael, then wrapped her in the bed
comforter and told her that her husband paid him to rape her. Couch yanked H.D.'s
iPhone and Apple Watch chargers from the wall outlet, used them to bind her hands and
feet, then left the bedroom. H.D. waited until she heard Couch leave the home then freed
herself free from the restraints using the pocketknife Couch left behind. She called her
husband to tell him what happened followed by a call to 911. H.D. then armed herself
with her husband's handgun and hid in the closet until police arrived.

H.D. underwent a sexual assault examination at the hospital, which yielded
evidence consistent with the rape and sodomy she reported. The police used H.D.'s report
and video footage from the Walmart parking lot to search for her assailant. Three days
later, an officer at the Goodland Police Department responded to a call at the town's
Motel 6, where they met Couch. The officers ran the license plate on a truck Couch was
driving and learned it was stolen so they impounded the vehicle. Authorities' subsequent
search of the truck yielded clothes matching those from H.D.'s report and a bottle of the
Bath and Body Works lotion he used during the assault. DNA testing performed as part
of the investigation revealed that Couch was likely the source of blood recovered from
the pocketknife and parts of H.D.'s home.

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 Couch was arrested and charged with three counts of aggravated criminal sodomy
and one count each of rape, aggravated burglary, kidnapping, and aggravated battery.

Prior to trial, Couch filed a motion to exercise his right to self-representation.
During the court's hearing on that motion Couch explained that he was "tired of lawyers,"
and that his appointed attorneys accused him of committing the crimes, then listed the
deficiencies he believed plagued the State's case against him. When Couch's attorney
addressed the court, Couch threatened to "bite [her] fucking face off." The district court
asked Couch about his education level and Couch replied that he graduated high school.
When the court inquired whether Couch had any legal training, Couch simply joked,
"Illegal, that's it." The court then remarked:

"Mr. Couch, I'm going to make the finding that you are not competent even in your own
case to represent yourself for purposes of trial. The concern I have is that you have on
numerous occasions in my presence spoke out at a time when other people were talking
or trying to present their position to the court. You have effectively threatened your own
attorney here in today's hearing and, frankly, I'm not sure that the victim's—crime victim
portion of the Kansas constitution would allow you personally to interview or question
the alleged victim in this matter, that that would be a violation of her rights. That's not
something that's been adjudicated in the State of Kansas, but certainly I think at this point
it's likely that you would not be able to complete that testimony or cross-examination
of—of the purported victim. Court is not going to grant your request for pro se
representation."

The district court also warned Couch that further outbursts during trial would
result in his removal from the courtroom. On the journal entry following the motions
hearing, the court noted it denied Couch's motion based on his "lack of restraint and
understanding of the full scope of defenses that are available to him at his upcoming
trial." The court vested Couch's counsel with exclusive authority to examine the State's
witnesses and present evidence on his behalf. Later, during another pretrial hearing,
Couch requested to remain in his jail jumpsuit and restraints during trial because he

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feared he would strangle someone if left unrestrained. When the prosecutor questioned
Couch about his request, Couch repeatedly told him to "fuck off" and explained, "I will
just go off and start strangling and cutting people up and raping and . . . if I can steal
anything in here, I'll steal it. Fuck off." Couch again requested to defend himself, but the
court cited its earlier decision to prohibit that course of action.

On the first day of trial, before the jury entered the courtroom, Couch asked to
submit a motion to the court and then immediately remarked, "I still agree—I speak for
everyone in this courtroom—that the prosecution is a bitch. That is my motion." The
court warned Couch that similar comments would prompt his removal from the
courtroom. Couch again requested to defend himself and the court again denied his
request. Shortly after the trial began, Couch became frustrated and attempted to leave the
courtroom. The judge ordered his removal and placement in a separate room where he
could observe his trial via closed-circuit television. Couch remained physically absent
from the courtroom until the fourth day of trial when he testified in his own defense.

During the instructions conference the State requested several amendments to the
model instructions for each count. The defense did not object to any of the proposals.
During the oral pronouncement of the instructions for the jury, the court explained that
with respect to count six, the aggravated battery charge, the State carried the burden to
prove that Couch knowingly caused great bodily harm to H.D. and that "knowingly"
meant he was aware of the circumstances in which he was acting. It did not instruct on
any lesser included offenses. The jury returned a verdict of guilty on all counts.

The district court sentenced Couch to a controlling 1,306-month prison term
followed by lifetime postrelease supervision and ordered him to pay $3,968.84 in
restitution to the Kansas Crime Victims Compensation Board and $31,612.50 to BIDS for
the representation he received. Regarding the BIDS attorney fees, the judge specifically
stated:

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 "I don't anticipate that Mr. Couch will ever be able to afford to pay even the small—
smallest proportion of the obligations that he has incurred here. But to be honest with
you, I think it is only fair in part to require that he reimburse the expenses of the trial and
the expenses as it relates to other charges. . . .
"There were attorney fees, and I understand that it is unlikely that BIDS or
anyone else will ever receive any of those fees."

Couch timely brought the matter before us to resolve various issues relating to his
convictions and sentence.

ANALYSIS

THE DISTRICT COURT DID NOT ERR WHEN IT PROHIBITED COUCH
FROM REPRESENTING HIMSELF.

Couch argues the district court violated his rights under the Sixth Amendment to
the United States Constitution and section 10 of the Kansas Constitution Bill of Rights
when it refused to allow him to represent himself at trial. The State responds that denial
was appropriate because he was disruptive and spewed threats during pretrial
proceedings. Because an issue related to self-representation poses a legal question, this
court exercises unlimited review. See State v. Bunyard, 307 Kan. 463, 470, 410 P.3d 902
(2018). The Sixth Amendment does not simply provide that a defense must be made for
the accused; it also grants the accused the right to personally present his or her defense.
Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

Couch claims the district court improperly focused on his lack of legal training as
its primary basis for denying his request for self-representation. Appellate courts must
exercise particular scrutiny when a trial court relies on a defendant's lack of technical
legal skill as its basis for prohibiting that individual from defending themselves. See
Bunyard, 307 Kan. at 470-71; State v. Burden, 311 Kan. 859, 865, 467 P.3d 495 (2020).

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 But as the State points out, the right to self-representation is not absolute. 311
Kan. at 865. In Faretta, for example, Justice Stewart wrote that trial judges may
terminate self-representation by a defendant who "deliberately engages in serious and
obstructionist misconduct." 422 U.S. at 834 n.46. In State v. Plunkett, 261 Kan. 1024,
1028, 934 P.2d 113 (1997), the defendant requested to represent himself but exhibited a
"surly, disrespectful attitude" at pretrial proceedings and "became belligerent and used
profanity," so the district court reappointed counsel for him. The Kansas Supreme Court
affirmed the district court's decision and found that trial judges "confronted with
disruptive, stubbornly defiant defendants must be given sufficient discretion to meet the
circumstances of each case." 261 Kan. at 1029 (citing Illinois v. Allen, 397 U.S. 337, 90
S. Ct. 1057, 25 L. Ed. 2d 353 [1970]). Additionally, the Kansas Criminal Law Handbook
recognizes the court's ability to terminate self-representation if the accused engages in
misconduct "in any proceeding," including pretrial hearings. Kansas Criminal Law
Handbook, pp. 11-8, 11-9 (5th ed. 2016); see Plunkett, 261 Kan. at 1028. The State
contends that Couch's profanity-laced outbursts and threats of physical violence to others
sufficiently substantiated the district court's denial of Couch's requests for self-
representation.

Indeed, the record before us bears out that Couch repeatedly interrupted the
district court, the prosecutor, and his own attorney during pretrial proceedings. Those
interruptions frequently included profanity and threats. Under Faretta, Plunkett, and
Burden, Couch's antics provided the district court with a sufficient basis to prohibit him
from representing himself.

We next address Couch's specific assertion that the district court impermissibly
relied on his lack of legal training when it barred him from proceeding pro se. Our review
of the record reveals that while the district court inquired whether Couch possessed any
legal knowledge or training, it is evident from the court's remarks that the true foundation
for its denial was Couch's inability to restrain himself. The district court also expressed

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concern regarding any cross-examination Couch attempted to conduct of H.D. This
rationale, as opposed to Couch's lack of legal training, is memorialized in the court's
journal entry. The record fails to lend any support to Couch's claim on this matter. Thus,
we conclude the district court did not improperly stymie Couch from exercising his right
to self-representation.

THE STATE PRESENTED SUFFICIENT EVIDENCE TO SUSTAIN COUCH'S
CONVICTION FOR AGGRAVATED KIDNAPPING.

In his second claim of error Couch argues that the State failed to present sufficient
evidence to convict him of aggravated kidnapping under K.S.A. 2018 Supp. 21-5408(b),
which defines "kidnapping," in relevant part, as the "(a) . . . taking or confining of any
person, accomplished by force, threat or deception, with the intent to hold such a person
. . . (2) to facilitate flight or the commission of any crime." Couch contends that his
movement of H.D. from the kitchen to the bedroom was "merely incidental" to the
commission of the rape. The State counters that when Couch bound H.D.'s hands and
feet, he did so with the intent to ease his escape, thus, sufficient evidence supports the
jury's guilty verdict for aggravated kidnapping.

When a defendant challenges the sufficiency of evidence for a criminal conviction,
this court reviews the evidence in a light most favorable to the State to determine whether
a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
State v. Rosa, 304 Kan. 773, 821, 375 P.3d 332 (2016).

To bolster his claim, Couch directs our attention to State v. Buggs, 219 Kan. 203,
547 P.2d 720 (1976). In that case, Buggs robbed two Dairy Queen employees in the
restaurant's parking lot as they were leaving after it closed. He ordered the employees to
unlock the store and go back inside. He then raped one of them. On appeal, Buggs argued

8
his kidnapping conviction had to be reversed because his movement and confinement of
the victims was minor, inconsequential, and merely incidental to the robbery and rape.

The Kansas Supreme Court looked to common-law interpretations of the term
"'kidnapping,'" which historically meant "'to take and carry away any person by unlawful
force or by fraud, and against his will.'" 219 Kan. at 209 (quoting State v. Brown, 181
Kan. 375, 388, 312 P.2d 832 [1957]). After a review of other states' kidnapping statutes
and the history of the Kansas law, the court held that the mere act of taking—not the
distance—supplies the necessary element of a kidnapping conviction. 219 Kan. at 210-
14. But, as the court noted, this lone conclusion did not end the inquiry. The court keyed
in on the term "facilitate" and held that it "means something more than just to make more
convenient." 219 Kan. at 214-15. Rather, the term means to "have some significant
bearing on making the commission of the crime 'easier'" such as lessening the risk of
detection." 219 Kan. at 215.

With that in mind, the court set out three factors that must be present to support a
kidnapping conviction: (a) the taking or confinement must not be slight, inconsequential,
and merely incidental to the other crime; (b) it must not be of the kind inherent to the
nature of the other crime; and (c) it must have some significance independent of the other
crime in that it makes the other crime substantially easier of commission or substantially
lessens the risk of detection. 219 Kan. at 216. For example, the court wrote, "the removal
of a rape victim from room to room within a dwelling solely for the convenience and
comfort of the rapist is not a kidnapping; the removal from a public place to a place of
seclusion is." 219 Kan. at 216. And since Buggs forced the victims from the public
parking lot back into the Dairy Queen—presumably to lessen the risk of being seen—the
court affirmed his kidnapping conviction. 219 Kan. at 216-17.

The court confronted the issue again in State v. Richmond, 250 Kan. 375, 827 P.2d
743 (1992). In that case, Richmond broke into the victim's residence and, when she

9
arrived home, he knocked her down, dragged her to her bedroom, and raped her.
Richmond bound his victim's hands and feet and left the bedroom. He returned a short
time later, however, and released her feet, but only so that he could rape her a second
time. On appeal, Richmond argued that his actions inside were incidental to the rape and
insufficient to rise to the level of kidnapping. The reviewing court disagreed and found
that Richmond incapacitated the victim which enabled him to search the house and rob
her of any valuables, unobstructed. 250 Kan. at 378. Moreove12r, the removal of the
victim from near the entrance of the home to a distant bedroom lessened the chance of
detection by anyone that arrived. Finally, he left the victim's hands bound throughout the
second rape, which the court concluded facilitated the commission of the crimes and
properly constituted a kidnapping. 250 Kan. at 378.

Compare this with State v. Olsman, 58 Kan. App. 2d 638, 473 P.3d 937 (2020). In
that case, Olsman grabbed the victim's forearm when she tried to leave his home,
wrapped her in a bearhug, and carried her from his living room, down the hallway, and
into his bedroom where he raped her. On appeal, Olsman argued his conviction was
improper under Buggs. The State asserted that his movement of the victim from the living
room to the bedroom—an area further from the front door—lessened the risk of detection
and therefore constituted a kidnapping. A panel of this court found the State's argument
unpersuasive because Olsman simply moved his victim from one room of his mobile
home to another, rather than from a public place to a place of seclusion. 58 Kan. App. 2d
at 646. The court likewise rejected the State's theory that the conviction should stand
because Olsman confined the victim to his bedroom during the rape. In support of its
conclusion the panel noted that rape "necessarily and inherently requires confinement of
the victim to a particular place where the rape occurs." After all, "if the victim were
allowed to leave, there would be no rape." 58 Kan. App. 2d at 649. The panel reversed
the defendant's kidnapping conviction. 58 Kan. App. 2d at 650.

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 Following a careful analysis of the evidence adduced we find that this case better
aligns with Buggs and Richmond. After Couch burst into H.D.'s home, he dragged her to
her bedroom at the back of her home and then raped and sodomized her. Following
commission of those offenses, Couch bound her hands and feet and ordered her not to
free herself until after he left. Couch's criminal conduct fulfills each component of the
Buggs test: (1) the physical restraint of H.D.'s movement was not slight and
inconsequential; (2) such restraint was not an inherent part of the rape since it occurred
afterward; and (3) his directive to H.D. not to free herself until after he left is indicative
of an act undertaken for purposes of avoiding detection. Viewing the evidence in a light
most favorable to the State, we are convinced it is sufficient to sustain Couch's conviction
for aggravated kidnapping.

CLEAR ERROR DID NOT OCCUR WITH THE ABSENCE OF LESSER INCLUDED OFFENSE
INSTRUCTIONS GIVEN THAT THE FACTS OF COUCH'S CASE DID NOT SUPPORT
ALTERNATIVE THEORIES OF AGGRAVATED BATTERY.

Although Couch neither requested such instruction nor objected to the absence of
the same from his trial, he now argues the district court erred when it neglected to instruct
the jury on a lesser included offense of aggravated battery. The State alleged that Couch
committed knowing aggravated battery in violation of K.S.A. 2018 Supp. 21-
5413(b)(1)(A) when he cut H.D.'s hands with the knife. But Couch claims the district
court should have instructed the jury on all subsections of K.S.A. 2018 Supp. 21-5413(b):

"(1)(B) knowingly causing bodily harm to another person with a deadly weapon,
or in any manner whereby great bodily harm, disfigurement or death can be inflicted;

"(1)(C) knowingly causing physical contact with another person when done in a
rude, insulting, or angry manner with a deadly weapon, or in any manner whereby great
bodily harm, disfigurement or death can be inflicted;

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 "(2)(A) recklessly causing great bodily harm to another person or disfigurement
of another person; and

"(2)(B) recklessly causing bodily harm to another person with a deadly weapon,
or in any manner whereby great bodily harm, disfigurement or death can be inflicted."

The State contends that lesser included offense instructions were unnecessary
because no evidence supported them.

When an appellant presents an instructional challenge, this court engages in a
four-step analysis in which it must: (1) assess whether the issue was properly preserved,
exercising an unlimited standard of review; (2) determine whether the instruction was
legally appropriate; (3) determine whether the instruction was factually appropriate,
reviewing the evidence supporting such an instruction in the light most favorable to the
appellant; and finally (4) if the district court erred, whether such error was harmless
under State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011). State v. Haygood, 308
Kan. 1387, 1403, 430 P.3d 11 (2018). The first and third step are interrelated: the
standard of review for reversibility at the third step depends on whether a party has
preserved the jury instruction challenge in the first step. State v. McLinn 307 Kan. 307,
317, 409 P.3d 1 (2018); see K.S.A. 2021 Supp. 22-3414(3) ("No party may assign as
error the giving or failure to give an instruction . . . unless the party objects thereto before
the jury retires to consider its verdict . . . unless the instruction or the failure to give an
instruction is clearly erroneous.").

a. Preservation and standard of review

Again, Couch's counsel neither requested the instructions at issue nor objected to
their absence. As a result, the issue was not preserved, and we analyze the court's failure
to give the instructions for clear error. See State v. Trautloff, 289 Kan. 793, 802, 217 P.3d
15 (2009). Under K.S.A. 22-3414(3), an instruction is clearly erroneous if the reviewing

12
court is firmly convinced there is a real possibility the jury would have rendered a
different verdict if the trial error had not occurred. Trautloff, 289 Kan. at 802.

b. Were the instructions legally appropriate?

The next step in the analysis demands a determination of whether the omitted
instructions were legally appropriate. Jury instructions must always fairly and accurately
state the applicable law, and the failure to do so renders them legally infirm. State v.
Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012).

The jury convicted Couch of aggravated battery under K.S.A. 2018 Supp. 21-
5413(b)(1)(A), "knowingly causing great bodily harm to another person or disfigurement
of another person," a severity level 4 person felony. He argues the district court should
have instructed the jury on the other forms of that offense which carry lesser penalties.
Under K.S.A. 2021 Supp. 22-3414(3), a judge must instruct the jury as to the crime
charged and any lesser included crime. A lesser included crime is a lesser degree of the
same crime or a crime where all elements of the lesser crime are identical to some
elements of the crime charged. K.S.A. 2021 Supp. 21-5109(b). Each of the instructions
Couch now requests fulfills the legally appropriate component as each constitutes a lesser
included offense of the theory of aggravated battery with which he was charged.

c. The instructions were not factually appropriate.

Our next step is to determine whether the evidence adduced at trial provided a
sufficient factual foundation for the additional instructions. See K.S.A. 2021 Supp. 22-
3414(3).

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 1. Knowing aggravated battery with a deadly weapon

Since instructions under K.S.A. 2018 Supp. 21-5413(b)(1)(B) and (b)(1)(C) were
legally appropriate, we must ascertain whether they were also supported by evidence. The
initial distinction which requires our attention is the degree of harm inflicted. The theory
under which Couch was charged and convicted contemplated that H.D. suffered great
bodily harm. The State pursued that course of action because Couch used a knife to carry
out his attack against H.D. and, as a result, she suffered substantial lacerations to her
hands which necessitated stitches.

The first two lesser included offense instructions for which Couch advocates share
the same "knowingly" mental state as the theory the State pursued at trial. K.S.A. 2018
Supp. 21-5413(b)(1)(B) addresses acts committed with a deadly weapon that result in
bodily harm or are carried out in such a way that great bodily harm, disfigurement, or
death can be inflicted. K.S.A. 2018 Supp. 21-5413(b)(1)(C) encompasses those acts
perpetrated with a deadly weapon which result in physical contact to another, inflicted in
a rude, insulting, or angry manner, or in any manner whereby great bodily harm,
disfigurement, or death can result.

To be factually warranted, there must be sufficient evidence, viewed in the light
most favorable to the defendant or the requesting party, to support the instruction. State v.
Perez-Medina, 310 Kan. 525, 533, 448 P.3d 446 (2019). Stated another way, an
instruction is factually appropriate if it "is supported by the particular facts of the case."
State v. Kleypas, 305 Kan. 224, Syl. ¶ 23, 382 P.3d 373 (2016).

For purposes of this inquiry the question is whether there was evidence adduced at
trial that was sufficient to pave the way for the jury to consider H.D.'s injuries through
the lens now requested by Couch. The evidence introduced in support of the State's
theory of the case established that Couch forced his way into H.D.'s home armed with a

14
knife. A struggle ensued and as H.D. resisted her attacker she sustained several deep
slices to her hands that resulted in considerable blood loss and required sutures.

Kansas courts have defined great bodily harm as being more than slight, trivial,
minor, or moderate harm and have held it does not include mere bruising. State v. Green,
280 Kan. 758, 765, 127 P.3d 241 (2006). In support of his request that the two
aforementioned instructions were warranted, Couch contends that while H.D.'s injuries
exceeded mere bruising, they were nevertheless "minimal" and only demanded a few
stitches. But Couch's assertions are merely that. Further, he conclusively argues that
"given the cutting abilities of a knife, there is certainly sufficient evidence that a jury
could find the attack was carried out in a manner whereby great bodily harm or
disfigurement could occur." However, he offers no authority, or analogous cases that lend
support to this proposition. Generally, a point raised incidentally in a brief and not argued
in it is considered waived or abandoned. State v. Meggerson, 312 Kan. 238, 246, 474
P.3d 761 (2020). Accordingly, we find that Couch waived the argument.

Although it is often within the jury's province to determine whether injuries
constitute mere bodily harm or great bodily harm, the district court did not err in failing
to include the instructions. There simply was no evidence suggesting that the harm H.D.
endured was slight or trivial to support instructions for the lesser included offense that
Couch now claims should have been given.

2. Reckless aggravated battery

Our next task is to determine whether there is factual support for the reckless
aggravated battery instructions that Couch now contends the district court had an
obligation to issue. In State v. Green, 55 Kan. App. 2d 595, 419 P.3d 83 (2018), the court
examined whether a "reckless" instruction was factually appropriate following Green's
conviction for knowing aggravated battery. The panel reiterated that "knowingly" means

15
that an offender "is aware of the nature of such person's conduct or that the circumstances
exist when such person is aware that such person's conduct is reasonably certain to cause
the result." 55 Kan. App. 2d at 612; see K.S.A. 2018 Supp. 21-5202(b)(2) and (i). By
contrast, "recklessly," means that the person "consciously disregards a substantial and
unjustifiable risk that circumstances exist or that a result will follow, and such disregard
constitutes a gross deviation from the standard of care which a reasonable person would
exercise in the situation." K.S.A. 2018 Supp. 21-5202(b)(3) and (j). In that case, Green
argued that evidence of his intoxication supported a "reckless" instruction. The court
rejected that contention and affirmed his conviction upon finding that scant evidence
supported a conclusion that Green's intoxication caused him to act recklessly or
prevented a knowing intent when he committed the crime. 55 Kan. App. 2d at 615-16. To
the contrary, all signs pointed toward Green's awareness of his conduct and its results.

The evidence in Couch's case likewise reflects an unquestionable awareness of the
conduct undertaken and its attendant results. H.D. testified that Couch forced his way into
her home, knocked her into her kitchen cabinet, and held his knife against her throat. She
struggled against the violent attack and in the course thereof sustained multiple deep
lacerations to her hands from Couch's knife.

Couch seeks to convince us that the jury could reasonably have interpreted his
conduct as merely reckless given the string of expletives he uttered upon seeing the cuts
to H.D.'s hands and large amount of blood.

Again, knowing aggravated battery requires proof that Couch acted while knowing
that some type of great bodily harm or disfigurement of H.D. was "reasonably certain" to
result from the act. See K.S.A. 2021 Supp. 21-5202(i); State v. Hobbs, 301 Kan. 203,
211-12, 340 P.3d 1179 (2015). In contrast, reckless aggravated battery requires proof that
Couch "consciously disregard[ed] a substantial and unjustifiable risk" that harm to H.D.
would result. See K.S.A. 2021 Supp. 21-5202 (j); State v. Trefethen, No. 119,981, 2021

16
WL 1433246, at *5-6 (Kan. App.) (unpublished opinion), rev. denied 314 Kan. 859
(2021).

The facts before us do not enable us to conclude that Couch's jury would have
rendered a different verdict if the district court issued the instruction Couch now insists
was warranted. When one bursts into the home of a stranger for the express purpose of
perpetrating acts of extreme sexual violence and holds a knife to the throat of their
targeted victim, the attacker knows that great bodily harm is reasonably certain to result.
Couch did not merely consciously disregard a substantial risk. Rather, the knife was an
integral component in forcing H.D.'s compliance with his degrading acts. Thus, he must
have known that the infliction of great bodily harm was reasonably certain.

a. If we were to assign error to this issue, which we do not, any such occurrence is
properly classified as harmless.

Typically, the final step of the analysis in instructional challenges requires the
reviewing court to determine whether any error attributable to the absence of the
instruction is harmless. Since we have found that instructional error did not occur, this
holding renders it unnecessary to analyze whether any error to manifest amounted to
clear error given Couch's lack of specific requests or objections. See Haygood, 308 Kan.
at 1403; see also State v. Tahah, 302 Kan. 783, 793, 358 P.3d 819 (2015) (the clear error
standard is heightened standard of harmlessness). Clear error occurs if the "'reviewing
court is firmly convinced there is a real possibility that the jury would have rendered a
different verdict if the error had not occurred.'" State v. Race, 293 Kan. 69, 85, 259 P.3d
707 (2011). We are not so convinced. Couch's claim of error is denied.

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 COUCH FAILED TO SUBSTANTIATE ANY OF HIS CLAIMS OF ERROR, THUS HE IS NOT
ENTITLED TO RELIEF UNDER THE THEORY OF CUMULATIVE ERROR

Couch next argues that the cumulative effect of trial errors deprived him of a fair
trial. The test for cumulative error is whether the totality of the circumstances
substantially prejudiced the defendant and denied the defendant a fair trial. But if the
evidence is overwhelming against the defendant, no prejudicial error may be found. State
v. Johnson, 304 Kan. 924, 956, 376 P.3d 70 (2016). When considering the cumulative
effect of errors, this court has unlimited review. 304 Kan. at 955. Given the absence of
error from Couch's trial, he is not entitled to relief under a theory of cumulative error.

COUCH'S CONSTITUTIONAL CHALLENGES TO KANSAS' CRIMINAL
RESTITUTION STATUTES DO NOT AFFORD HIM RELIEF.

The district court ordered Couch to pay $3,968.84 in restitution to the Kansas
Crime Victims Compensation Board—a practice that is sanctioned by our state's criminal
restitution statutes. Couch argues Kansas' restitution statutes violate section 5 of the
Kansas Constitution Bill of Rights because they encroach upon a criminal defendant's
common-law right to a civil jury trial on damages caused by the defendant's crime. He
further contends those provisions violate his Sixth Amendment jury trial right because the
statutes allow the court to make a finding of fact that increased the penalty for his crime
beyond the prescribed statutory maximum. See Apprendi, 530 U.S. 466.

a. Preservation

Couch failed to object to the court's restitution finding at trial but contends we
should still reach the merits of his claim. Despite the general rule against reviewing
issues for the first time on appeal, Kansas courts have recognized three exceptions: (1)
The newly asserted claim involves only a question of law arising on proved or admitted
facts and is finally determinative of the case; (2) consideration of the claim is necessary

18
to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the
district court is right for the wrong reason. State v. Godfrey, 301 Kan. 1041, 1043, 350
P.3d 1068 (2015).

Couch claims this issue falls under both the first and second exceptions to the
preservation rule. In State v. Jones, No. 113,044, 2016 WL 852865, at *8 (Kan. App.
2016) (unpublished opinion), the defendant similarly argued the Kansas restitution
statutes violated the state's Constitution but failed to preserve his argument. The court
determined that the first exception did not apply because "the determination of Jones'
restitution claim is not finally determinative of the case." 2016 WL 852865, at *9. It
further found the second exception inapplicable because "it cannot be argued that
consideration of the issue is necessary to serve the ends of justice or to prevent a denial of
fundamental rights when Jones did not even object to the imposition or the amount of
restitution at sentencing." 2016 WL 852865, at *9. One year later, in State v. Patterson,
No. 114,861, 2017 WL 3207149, at *8 (Kan. App. 2017) (unpublished opinion), a panel
of this court also rejected a defendant's constitutional challenge to the restitution statutes
due to a lack of proper preservation. See also State v. Bradwell, No. 115,153, 2016 WL
7178771, at *4 (Kan. App. 2016) (unpublished opinion) (following Jones).

Couch implores us to depart from Jones, Patterson, and Bradwell, but his
arguments are unpersuasive. He asserts that "simply because he may not achieve a total
exoneration of his convictions and sentence does not render any decision on restitution
superfluous, and refusal to reach a constitutional error on that basis is inconsistent with
the pursuit of justice." But we cannot rewrite the Godfrey exceptions to accommodate
Couch's argument. Couch also claims that the second exception should afford him an
avenue because the right to trial by jury is fundamental. But as the Jones panel
recognized, an offender cannot claim the court violated a fundamental right when he
neglected to object to the imposition or amount of restitution when he or she had the

19
opportunity to do so at sentencing. We find the Jones panel's rationale persuasive and opt
to adhere to the same.

Even if we were inclined to review Couch's claims, which we are not, it is of no
solace because they both fail under the recently decided cases of State v. Robison, 314
Kan. 245, 496 P.3d 892 (2021), petition for cert. filed February 11, 2022, and State v.
Arnett, 314 Kan. 183, 496 P.3d 928 (2021), cert. denied __ S. Ct. __, 2022 WL 2295394
(U.S. 2022). In these cases, the Kansas Supreme Court addressed arguments identical to
Couch's claims here and found that the current Kansas criminal restitution statutes do not
trigger Sixth Amendment protections as contemplated by Apprendi and its progeny.
Robison, 314 Kan. at 249-50; Arnett, 314 Kan. at 186-88. Meanwhile, the Kansas
Supreme Court did determine that the present statutory restitution scheme violates section
5 of the Kansas Constitution Bill of Rights to the extent it allows conversion of restitution
orders into civil judgments—effectively bypassing the traditional function of juries to
determine civil damages. Arnett, 314 Kan. at 189-93. However, the Arnett court
concluded the proper remedy was to sever the offending portions of the statutory scheme,
not to vacate every restitution order. 314 Kan. at 194-95. Although Kansas restitution
statutes implicate section 5, the severance of the unconstitutional provisions renders
Couch's restitution judgment constitutionally valid. See Arnett, 314 Kan. at 194-96; State
v. Owens, 314 Kan. 210, 242-44, 496 P.3d 902 (2021).

This court is duty-bound to follow Kansas Supreme Court precedent unless there
is some indication that court is departing from its previous position. State v. Rodriguez,
305 Kan. 1139, 1144, 390 P.3d 903 (2017). There is no reason to suggest such a
departure from this precedent considering the recency of the Kansas Supreme Court's
decisions on these issues. Accordingly, Couch's constitutional claims fail.

20
 THE DISTRICT COURT ERRED WHEN IT ORDERED COUCH TO PAY BIDS ATTORNEY FEES.

Finally, Couch argues the district court erred when it ordered him to pay BIDS
fees because it explicitly found Couch is not likely to be able to meet the obligation. The
State concedes that error occurred, and the order must be vacated. See State v. Robinson,
281 Kan. 538, 545-46, 132 P.3d 934 (2006) (repayment of attorney fees must be
conditioned on the ability to pay). This issue involves a question of law with unlimited
review. 281 Kan. at 539.

Where the record reflects Couch is unable to pay the fees and the district court
expressly concluded as much, the order is erroneous and cannot be permitted to stand.
The district court's imposition of the BIDS attorney fees is vacated.

Affirmed in part and vacated in part.

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