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IN THE SUPREME COURT OF THE STATE OF KANSAS Nos. 98,292 98,952 STATE OF KANSAS, Appellee, v. DANA WAYNE DEAL, Appellant.

SYLLABUS BY THE COURT

1. K.S.A. 21-3402 defines murder in the second degree as the killing of a human being committed either intentionally or unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. The unambiguous language of this statute requires the killing--the result--to be either intentional or unintentional.

2. The evidence is sufficient to establish an unintentional but reckless second-degree murder in violation of K.S.A. 21-3402(b) where the evidence most favorable to the State establishes: The defendant went to the victim's house; the victim became physically aggressive and tried to hit the defendant with a tire iron; and the defendant wrestled the tire iron away, and, without an intent to kill, struck blows to the victim's shoulder, neck, and head area.

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3. Even if it was error to give a "no duty to retreat" instruction in this case, the error was not reversible because the instruction would not have reasonably misled the jury in light of the instructions as a whole and the evidence. By the defendant's own admission, there was an altercation between him and the victim, early in the altercation the defendant had control of the only weapon used against the defendant, the defendant subsequently hit the victim out of anger rather than in an attempt to defend himself, and the defendant did not suffer a major injury sufficient to warrant the victim's brutal beating.

4. An appellate court lacks jurisdiction to review a criminal defendant's complaint that a sentencing court abused its discretion by sentencing the defendant to any term within the presumptive grid block, even if the sentence is the aggravated term.

5. Use of prior convictions in a criminal defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 866, 206 P.3d 529 (2009). Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed February 17, 2012. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

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James R. Spring, deputy county attorney, argued the cause, and Christopher E. Smith, county attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Dana Wayne Deal appeals, arguing in part there is insufficient evidence to support his conviction for unintentional but reckless second-degree murder in violation of K.S.A. 21-3402(b). Deal argues the evidence established that he intentionally hit Donald Irvin with a metal tire iron and Irvin died as a result of these intentionally inflicted blows. Because Deal acted intentionally in inflicting these blows, he argues he cannot be guilty of unintentional but reckless second-degree murder.

On direct appeal, the Court of Appeals rejected this argument and affirmed Deal's conviction and sentence. State v. Deal, 41 Kan. App. 2d 866, 206 P.3d 529 (2009). On review of that decision, we affirm the Court of Appeals and the jury verdict. We hold that K.S.A. 21-3402 focuses culpability on whether a killing is intentional, not on whether a deliberate and voluntary act leads to death. In this case, there is evidence that Deal did not intend to kill Irvin, and this evidence is sufficient to support the jury's determination that Deal committed an unintentional but reckless second-degree murder.

In addition, we reject Deal's other arguments that the jury was misled by a "no duty to retreat" jury instruction and that his sentence is unconstitutional because the jury did not determine he should be sentenced to the longest term in the applicable grid box or his criminal history.

FACTS AND PROCEDURAL BACKGROUND

Deal's conviction was based on events that occurred on the night of July 8, 2005, and the early morning of July 9, 2005. Between 11 p.m. and midnight, Ric Montoya 3

knocked on the door of Irvin's next door neighbor, Karla Halstead, and asked if Irvin was there. Halstead noticed that Montoya was intoxicated and was unable to understand her as she explained he had the wrong house. Halstead eventually closed the door and left Montoya standing on her front porch.

About 45 minutes later, Halstead looked out of her kitchen window and saw Montoya and another man coming out of the side door of Irvin's house. Although Halstead knew Montoya, she did not recognize the other man. Halstead saw the unidentified man walk across the street and throw an object over a 10- to 12-foot dike on the north side of the street. Halstead then saw the unidentified man and Montoya get into a white pickup truck and drive away with the headlights off.

Someone made a 911 call regarding a disturbance at Irvin's house, and law enforcement officers and emergency medical services (EMS) personnel responded. The first officer to arrive saw an open side door and a person, who was later identified as Irvin, lying on the floor. Irvin was unresponsive and appeared to have lost a large amount of blood. He was declared dead at the hospital.

As law enforcement officers investigated Montoya's possible involvement, they learned Montoya had been with Deal around the time of the incident. They contacted Deal, who agreed to talk to officers. After being Mirandized, Deal initially denied being at Irvin's house during the night. Deal's statement changed, however, after officers told Deal his truck had been seen at Irvin's house, a neighbor had identified Montoya, and they knew he had been with Montoya that night.

Faced with that information, Deal admitted to fighting Irvin and explained what led to the fight. Specifically, he told the officers he and Montoya were driving around the previous night when Montoya told him Irvin had kept Deal's girlfriend at Irvin's residence

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for 3 days during which time Irvin had drugged and sexually abused her. Because Deal wanted to get Irvin's side of the story, he drove to Irvin's house.

Deal's statement was consistent with Halstead's account; he indicated that Montoya, who Deal described as being drunk, initially went to the wrong house. Deal, however, knocked on Irvin's door and confronted Irvin about the alleged incident with Deal's girlfriend. Deal and Irvin argued, and Irvin told Deal to get out of his house. At that point, according to what Deal told the officers, Irvin picked up a metal tire iron and swung it at Deal twice. Deal reported he was able to block the blows with his arms. But the officers did not see any scrapes or red marks evident at that point in time.

Deal told the officers he kicked Irvin in the groin, grabbed the tire iron away from Irvin, and struck Irvin twice with the tire iron--one time in the head and one time in the left shoulder area. In a later written statement, however, Deal indicated he struck Irvin once in the front right area of his head and another time in his right head and neck area, when Irvin "came at me again." During his interview, Deal further stated that when Irvin fell to the floor, he kicked Irvin "in the ass." According to Deal, Montoya came into the room while he was kicking Irvin. Deal indicated Montoya "poked and sliced" at Irvin with a fillet knife. Montoya also kicked Irvin several times.

When Deal and Montoya left Irvin's house, according to Deal's written statement, Irvin was "on the floor moaning" and was "beat down but not hurt to [sic] bad." Deal told the officers he knew Irvin was hurt but he did not mean to kill Irvin. According to Deal, Irvin did not deserve to die no matter what he had done.

Officers later found a tire iron, which was approximately 18 to 20 inches long, and a fillet knife on the north side of the dike near Irvin's house. In addition, officers found a variety of tools, including tire-changing and jack equipment, in Deal's truck.

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On July 10, 2005, Deal agreed to do a "walk-through" interview at Irvin's house. Once during the interview, Deal referred to the tire iron used during the incident as "my bar." Deal told the officers his emotions got out of hand when Irvin showed disrespect towards his girlfriend. Deal stated he was not thinking during the incident, he felt he was defending himself when he hit Irvin the first time, and he struck out of anger when he hit Irvin the second time. Deal told the officers he knew Irvin carried knives and guns, and he believed Irvin might have kept a gun or knife in the corner of the room. During the "walk-through" interview, one of the officers noticed a small red mark on Deal's forearm that had not been observed the previous day. Deal flinched when the officer touched it.

Deal provided additional information at subsequent interviews. In an interview conducted on July 11, 2005, Deal mentioned that Irvin had pointed a squirt gun at him. On February 15, 2006, a videotaped deposition was taken of Deal. During the deposition, Deal went into detail about a .38 caliber gun that Irvin possessed. He also described a modified paintball gun owned by Irvin that shot "steel" bullets that "would go through a two-by-four." This was the first time Deal had mentioned the .38 caliber or the modified paintball gun.

Dr. Lawrence Czarnecki conducted the autopsy on Irvin's body. At trial, Dr. Czarnecki testified Irvin had blunt force injuries to his head, chest, abdomen, left shoulder area, legs, and head. Describing the injuries to each of these areas of the body, Dr. Czarnecki explained that Irvin sustained a depressed fracture to his head and Irvin's skull had been pushed into his brain; the head injuries were on both the left and right side of the head. Irvin sustained four rib fractures and breaks in each forearm. There were lacerations, abrasions, and contusions on Irvin's arms and legs. Irvin also had a 3/8-inch incision on his right leg, but that injury was not enough to kill him. Dr. Czarnecki opined that the cause of Irvin's death was multiple blunt and sharp force injuries; nevertheless, Irvin's blunt force injuries to his head were enough to kill him.

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Deal was initially charged with premeditated first-degree murder in violation of K.S.A. 21-3401(a) or, alternatively, felony murder in violation of K.S.A. 21-3401(b). Before the conclusion of the preliminary hearing, Deal entered into an agreement with the State: Deal agreed to testify against Montoya, and the State agreed to reduce the charge against Deal to unintentional but reckless second-degree murder in violation of K.S.A. 21-3402(b). (In the cases we will discuss, there are various terms used as shorthand labels for violations of this statute, including reckless second-degree murder, depraved heart murder, unintentional murder, and unintentional but reckless murder; we will refer to the violations as unintentional but reckless second-degree murder.)

In addition to instructing the jury on unintentional but reckless second-degree murder, the trial court also gave jury instructions on the lesser included offenses of voluntary manslaughter and involuntary manslaughter. The jury ultimately convicted Deal of unintentional but reckless second-degree murder. Deal was sentenced to 168 months in prison, which represented the aggravated number in the appropriate sentencing grid box.

As previously noted, Deal appealed to the Court of Appeals, which affirmed his conviction and sentence. Deal, 41 Kan. App. 2d 866. Deal then filed a petition for review, which we granted. Consequently, our jurisdiction arises under K.S.A. 20-3018(b) (petition for review) and K.S.A. 22-3602(e) (same). See Supreme Court Rule 8.03 (2011 Kan. Ct. R. Annot. 69).

SUFFICIENCY OF THE EVIDENCE

First, Deal argues the State failed to present sufficient evidence to convict him of unintentional but reckless second-degree murder under K.S.A. 21-3402(b). K.S.A. 213402 states: "Murder in the second degree is the killing of a human being committed: (a)

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Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." (Emphasis added.)

Our standard for reviewing a sufficiency of the evidence argument is well established: The standard of review requires us to review all the evidence in the light most favorable to the State. If, when the evidence is viewed in this light, a rational factfinder could have found the defendant guilty beyond a reasonable doubt, we must affirm. State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010).

In raising this issue, Deal contends all the evidence presented by the State showed he acted intentionally in beating Irvin, and neither the State nor the defense presented any evidence he acted unintentionally but recklessly. In making this argument, Deal focuses on the voluntariness of his actions of hitting Irvin, stating: "It is not enough . . . to show that Irvin's death was unintentional but reckless; the State must show that the action that caused the death was unintentional but reckless." Because (1) Deal intended to hit Irvin with the metal bar, (2) he swung at Irvin's head area, and (3) death resulted, Deal argues the killing was intentional not reckless.

Court of Appeals Analysis

Rejecting these arguments, the Court of Appeals determined there was sufficient evidence to support the jury's verdict that Deal had unintentionally but recklessly caused Irvin's death. In reaching this conclusion, the Court of Appeals relied heavily on State v. Robinson, 261 Kan. 865, 873, 934 P.2d 38 (1997). In that case, Robinson had been convicted of unintentional but reckless second-degree murder after he killed Richard Crowley, who "was clearly the initial aggressor." Robinson, 261 Kan. at 867. The incident that led to Crowley's death began when Crowley approached Jeremy Hendrickson and his three friends, one of whom was Jerry Robinson, about threats Hendrickson had made against Crowley's sons. As the confrontation became heated, 8

Crowley hit one of the boys in the face. Crowley eventually pulled a metal baseball bat out of his truck and chased the boys with it, swinging at them when they got close.

While they were running away from Crowley, each boy grabbed a golf club out of a nearby car. The boys surrounded Crowley and taunted him by calling him names and swinging their clubs at him. Crowley was able to break free from the boys, but one of them hit Crowley in the back with a golf club. When one of the boys tripped and fell, Crowley hit him twice with the bat. Hendrickson then struck Crowley twice in the back or in the ribs with a golf club. The boy who had fallen to the ground was able to roll away from Crowley and began to get off the ground. At that time, Robinson fatally struck Crowley in the head with his golf club. Robinson testified that he was not trying to hit Crowley in the head but was trying to hit him in the arms in order to make him stop hitting his fallen friend with the bat. Robinson also testified that he could not remember whether his eyes were open or closed when he hit Crowley.

On appeal, Robinson argued the evidence was insufficient to convict him of unintentional but reckless second-degree murder for two reasons: (1) because his "extreme indifference" involved only one specific person, Crowley, and not human life in general; and (2) because he killed Crowley in an imperfect right to self-defense situation. In rejecting the defendant's first argument, this court held the elements of unintentional but reckless second-degree murder could be met if a defendant manifested an extreme indifference to the value of a specific human life as compared to human life in general. Robinson, 261 Kan. at 880. Additionally, this court held the evidence, which indicated Robinson swung a golf club at Crowley with great force, intending to hit him, was sufficient for the jury to find that Robinson recklessly killed a person while manifesting an extreme indifference to the value of one specific human life. Robinson, 261 Kan. at 881.

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The Robinson court recognized the jury could have found that Robinson intentionally struck Crowley in the head in defense of Robinson's friend, which would have gone to the defense theories of self-defense or imperfect self-defense. But, when the evidence was viewed in the light most favorable to the verdict, "the jury could have found that blindly swinging a golf club at a person with great force constitutes extreme recklessness 'manifesting an extreme indifference to the value of human life.'" Robinson, 261 Kan. at 881. In other words, there was reckless conduct of wildly swinging the club as well as a reckless disregard for the risk of death in circumstances that showed an extreme indifference to the value of an individual human life.

In this case, the Court of Appeals discussed a portion of the Robinson court's analysis regarding whether action aimed at one person was covered by the statute, noting this discussion provided support for the State's view of the evidence in this case. Specifically, the Robinson court had pointed to an article written by Professor Emil Tonkovich in The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73, 78 (1993). Professor Tonkovich was a member of the Kansas Judicial Council Criminal Law Advisory Committee that proposed the initial version of the 1992 Kansas Criminal Code amendments in which second-degree murder was expanded to include unintentional but reckless killings under circumstances manifesting an extreme indifference to the value of human life.

Professor Tonkovich explained Kansas' unintentional but reckless second-degree murder provision was modeled after the same provision in the Model Penal Code. Professor Tonkovich also discussed some of the Committee's comments, stating:

''Depraved-heart [unintentional but reckless second-degree] murder includes extremely reckless killings and killings resulting from actions which were intended to inflict serious bodily injury. [Citation omitted.] Examples of depraved heart murder include: (1) killing a child while target shooting at school windows during school hours; and (2) killing a

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person while beating him with a baseball bat with intent to severely injure him." (Emphasis added.) 41 Kan. L. Rev., Crim. Proc. Ed. at 78.

As the Court of Appeals in this case noted, the two cited examples describe voluntary and deliberate conduct: a gun is fired for target practice or a baseball bat is swung. Although the firing of the gun and the swinging of the bat were intentional, voluntary acts, each voluntary act resulted in an unintentional killing because the actors did not have the conscious objective to kill or a conscious awareness that their actions would result in the killing of a human being. In the example most like the facts of this case, Professor Tonkovich described using the baseball bat with the intent to beat, not the intent to kill, but in circumstances manifesting extreme indifference to the value of human life.

Applying this analysis to the facts of this case, the Court of Appeals majority concluded Professor Tonkovich's second example was comparable to the circumstances of this case. The majority explained:

"Although Deal's statements indicated that he did not intend to kill Irvin, his use of a tire tool to brutally beat Irvin establishes that he had the intent to severely injure him. Deal's conduct of striking Irvin in the head (a vital area of a person's body) with a tire tool after having taken it away from Irvin showed that Deal had intended to severely injure Irvin. Hence, Deal's actions furnished the extreme recklessness towards human life required for the crime of unintentional second-degree murder." Deal, 41 Kan. App. 2d at 875.

In other words, according to the Court of Appeals, despite Deal's commission of an intentional beating, the unintended result of death and attendant circumstances showing an extreme disregard for the value of human life placed this crime in the category of unintentional but reckless second-degree murder.

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One member of the Court of Appeals panel concurred in the holding but noted there were reasons to distrust Deal's self-serving statements. He observed, however, that it was not necessary to accept Deal's statements to affirm the verdict because, "[i]n looking at the sufficiency of the evidence, we must look at the evidence in the light most favorable to the jury's verdict," and other evidence supported the verdict. Deal, 41 Kan. App. 2d at 895 (Leben, J., concurring).

Regardless of whether Deal's statements were factored into the analysis, the Court of Appeals panel members all agreed a rational jury could have found Deal guilty of unintentional but reckless second-degree murder because "[t]he amount of force used by Deal and the number of times that Deal hit Irvin showed that Deal recklessly killed Irvin 'under circumstances manifesting extreme indifference to the value of human life.'" Deal, 41 Kan. App. 2d at 878.

Deal's Arguments on Review

In his petition for review, Deal distinguishes Robinson on several grounds. First, Deal notes, Robinson focused on the validity and application of the "manifesting extreme indifference" language in the unintentional but reckless second-degree murder statute. That language is not at issue in the present case. Second, Deal notes the Robinson court was not presented with the issue of whether an intentional blow or strike resulting in an unintended death can support a conviction for unintentional but reckless second-degree murder. While both of these points are valid, neither undercuts the validity of the Court of Appeals' reliance on the Robinson analysis. This is because the Robinson analysis overlaps with and touches on the question of whether a deliberate and voluntary act can result in an unintentional but reckless killing, the issue presented by Deal. And that analysis supports the Court of Appeals' application of the statute in this case and the conclusion that a deliberate and voluntary act can result in an unintentional but reckless killing if the specific intent to kill, as required by K.S.A. 21-3402(a), is not proven. 12

Deal also distinguishes Robinson by arguing there is no evidence in this case similar to the evidence that Robinson swung the golf club "blindly" by closing his eyes and was trying to hit the victim in the arms, not the head. Robinson, 261 Kan. at 881. He suggests there is, therefore, no support for the State's argument that Deal struck the victim "wildly and blindly, [and] did not know where on the victim's person he had struck him." We agree with Deal; unlike the circumstances in Robinson, there is no evidence Deal swung "blindly," failed to take aim, or missed his mark. Rather, by his own admission, Deal used the tire iron to purposefully hit Irvin in the neck, shoulder, and head. Nevertheless, this distinction does not make the analysis in Robinson inapplicable because blind conduct, while one form of reckless conduct, is not the only type of conduct that can be reckless; even an intentional blow can result in an unintentional but reckless killing. Once again, this point is illustrated by Professor Tonkovich's example of an unintentional but reckless second-degree murder resulting when a baseball bat is used with the purpose of injuring someone, meaning that the blows are intentionally struck on the body of the victim so that an injury results. The critical point illustrated in the example is that it is not the intent to inflict a blow but the intent to kill that is the focal point.

Deal also suggests, however, that in addition to the lack of evidence of blind or wild swinging of the tire iron the facts of this case are more like the circumstances in several Kansas cases that focused on whether a defendant's conduct was intentional. In each of the cases cited by Deal, the focus was on whether a defendant convicted of an intentional homicide--premeditated first-degree murder or intentional second-degree murder--for shooting, strangling, or beating a victim was entitled to a lesser included offense instruction on unintentional but reckless second-degree murder. See State v. Cavaness, 278 Kan. 469, 101 P.3d 717 (2004) (beating and torturing; premeditated firstdegree murder); State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999) (manual strangulation; intentional second-degree murder); State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998) (shooting; intentional second-degree murder), overruled on other grounds by 13

State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006); State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997) (shooting; premeditated first-degree murder); State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996) (shooting; premeditated first-degree murder).

Because each of these cases dealt with a claim of error based on the district court's failure to give a lesser included offense instruction, this court evaluated whether the jury could have reasonably convicted the defendant of the lesser offense; if not, it was not error to fail to give the instruction. See K.S.A. 22-3414(3); State v. Simmons, 282 Kan. 728, 741-42, 148 P.3d 525 (2006) (stating standard of review). In each case, we concluded there was no error in failing to give the instruction, despite the defendant's comment that he did not intend to kill the victim. This means, according to Deal, "a defendant does not act unintentionally but recklessly where the evidence establishes that death was an unintended consequence of an intentional act." Contrary to Deal's argument, the facts of these cases do not necessarily support this conclusion. In each case, there were facts to support the appellate court's conclusion that a jury could not have reasonably convicted the defendant of unintentional but reckless second-degree murder.

More critically, the language of K.S.A. 21-3402 does not support Deal's argument. Rather, the unambiguous language of this statute requires the killing--the result--to be either intentional or unintentional. Based on this language, this court has recognized that K.S.A. 21-3402(a), the provision relating to intentional second-degree murder, defines a specific intent crime; a defendant must have the specific intent to kill. State v. Hayes, 270 Kan. 535, 543, 17 P.3d 317 (2001); State v. Pope, 23 Kan. App. 2d 69, 73, 927 P.2d 503 (1996), rev. denied 261 Kan. 1088 (1997); see Richie v. State, 149 S.W.3d 856, 857 (Tex. App. 2004) ("murder is known as a 'result of conduct offense.' [Citation omitted.] . . . That is, the statute requires the accused to have had a particular mind set . . . viz the prohibited result.").

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On the other hand, under K.S.A. 21-3402(b) the result--the killing--must be unintentional. 1 LaFave & Scott, Substantive Criminal Law

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