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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 102,521 STATE OF KANSAS, Appellee, v. MONTREZ D. WASHINGTON, Appellant.

SYLLABUS BY THE COURT

1. The district court did not err in finding that the crimes of first-degree felony murder and attempted aggravated robbery had occurred and that there was probable cause to believe the defendant had committed those crimes, when evidence was presented at the preliminary hearing that the defendant had participated in the planning of a robbery, the defendant armed himself in preparation for the robbery, one of the defendant's accomplices pointed a gun at the victim, and the victim suffered a fatal gunshot wound in an ensuing struggle that led the defendant and his accomplices to abandon their efforts to steal property.

2. The "another trial would be a burden on both sides" language in the former version of PIK Crim. 3d 68.12 is erroneous. But the instruction was not clearly erroneous under the facts of this case where the instruction was included in the jury instructions given before jury deliberations and there was no indication the instruction changed the outcome of trial.

Appeal from Sedgwick District Court; JAMES L. BURGESS and WARREN M. WILBERT, judges. Opinion filed January 20, 2012. Affirmed.

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Carl F.A. Maughan, of Maughan & Maughan, LC, of Wichita, argued the cause, and Bryan C. Hitchcock, of the same firm, was with him on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Montrez D. Washington was charged with first-degree felony murder under K.S.A. 21-3401(b) and attempted aggravated robbery under K.S.A. 213301 and K.S.A. 21-3427. After a jury convicted Washington on both counts, he directly appeals. He contends that (1) insufficient evidence was presented at his preliminary hearing and (2) the Allen-type jury instruction given at his trial was clearly erroneous. We reject his arguments and affirm, finding that the evidence was sufficient and the instruction, even if erroneous, did not affect the jury's verdict.

The charges stemmed from the January 3, 2007, killing of Donyel Bagsby during an attempted aggravated robbery. At that time, Washington was 17 years old. After filing charges, the State filed a joint motion for adult prosecution and preliminary examination. The motion was presented to the district court at an evidentiary hearing. Based on the evidence, the district court found Washington should be prosecuted as an adult. The court then granted the State's motion to consider the evidence for purposes of a preliminary examination as provided for in K.S.A. 22-2902(3). The court found probable cause to believe Washington committed the charged offenses and bound Washington over for arraignment in adult criminal court.

The case proceeded to a trial, which ended in a mistrial. At the second trial, the jury found Washington guilty on both counts. The district court sentenced Washington to life imprisonment without the possibility of parole for 20 years for the felony-murder 2

conviction, to be served concurrently with a term of 32 months' imprisonment for the attempted aggravated robbery conviction.

Washington directly appeals his convictions. This court has jurisdiction under K.S.A. 22-3601(b)(1).

Additional facts are provided below where necessary.

ISSUE 1: Was the evidence presented at Washington's preliminary hearing sufficient to bind him over for trial? Washington first contends the evidence presented at the hearing on the State's motion for adult prosecution and preliminary examination was insufficient to support a finding of probable cause that attempted aggravated robbery and felony murder were committed and that Washington committed those felonies.

Under K.S.A. 22-2902(3), the magistrate at a preliminary hearing examines the evidence to determine (1) whether a crime has been committed and (2) whether there is probable cause to believe that the accused committed the crime. State v. Valladarez, 288 Kan. 671, 677, 206 P.3d 879 (2009). The evidence need not prove guilt beyond a reasonable doubt, only probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). "Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000) (citing State v. Puckett, 240 Kan. 393, Syl.

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