State v. Lax

State of Kansas, Appellee, v. Dalton Xavier Lax, Appellant.

No. 121, 540

Court of Appeals of Kansas

December 18, 2020

NOT DESIGNATED FOR PUBLICATION

Appeal from Shawnee District Court; Cheryl A. Rios, judge.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt attorney general, for appellee.

Before Green, P.J., Malone, J., and McAnany, S.J.

MEMORANDUM OPINION

PER CURIAM.

Dalton Xavier Lax appeals his convictions of attempted first-degree murder, aggravated battery, criminal discharge of a firearm at an occupied dwelling, and criminal possession of a firearm. Lax claims: (1) the complaint charging him with attempted first-degree murder was duplicitous; (2) the district court gave a clearly erroneous jury instruction defining premeditation; and (3) the district court violated his constitutional right to a jury trial by accepting his stipulation to two elements of criminal possession of a firearm without first obtaining a knowing and voluntary waiver of his right to a jury trial. We find that Lax is entitled to relief on his third claim, but we otherwise affirm the district court's judgment.

Factual and Procedural Background

The events that led to Lax's convictions began with the February 2016 murder of DelJuan Patton, a member of the Topeka street gang known as the Four Corner Hustlers. Patton's father was a leader of the Four Corner Hustlers and Patton's brother and Lax were members as well. Lax and Patton were close friends; Lax described him as "like a brother." Rumor had it that Trevon Praylow a member of rival street gang the Gangster Disciples, or another Gangster Disciple was involved in Patton's murder.

This case arises from two separate shootings involving Praylow. On May 3, 2016, Praylow drove to the hospital in a red Pontiac Grand Prix and received treatment for a gunshot wound to his back. He told police he had been at a park waiting for his child to arrive and he did not know who shot him. The same day, two witnesses came forward and reported to police that an individual in a white vehicle had shot at an individual in a red vehicle near the intersection of Fillmore Street and 16th Street, but neither witness could identify the individuals involved. Police collected a shell casing from the road near the intersection and, while processing Praylow's car, found a projectile in the driver's door.

The second shooting occurred on June 25, 2016, the day after what would have been Patton's birthday. Praylow was staying at his sister's duplex on Southeast 44th Terrace with his sister, her children, and her boyfriend. In the early morning hours, Praylow heard gunshots outside the duplex. Praylow's sister called the police, but Praylow told them he did not know what happened. Police collected shell casings from the scene and documented at least six bullet holes in the home's living room window.

On August 24, 2016, Praylow was arrested and charged with criminal possession of a firearm. During an initial meeting with law enforcement about that case, Praylow identified Lax as the person who had shot him. According to Praylow, on May 3, 2016, Lax pulled up next to him near the intersection of 16th and Fillmore Streets, driving a white Grand Prix, and shot him. As for the June 25, 2016 shooting at his sister's duplex, Praylow said he looked out a side door just after the shooting and saw Lax run away and get into the same white Grand Prix. Praylow explained that he had not at first identified Lax as the shooter because he wanted to retaliate personally, but after his own arrest he was more concerned with protecting his family and loved ones. Praylow believed that Lax had shot him and shot at his sister's home seeking revenge for Patton's murder.

On August 25, 2016, the State charged Lax with one count of intentional aggravated battery resulting in great bodily harm involving the May 3, 2016 shooting of Praylow. A felony arrest warrant was issued, and the next day Topeka police arrested Lax at a UPS store, where he was trying to ship a cell phone. Police seized the cell phone and Detective Patrick Ladd of the Topeka Police Department extracted information from the phone. The extraction revealed prior text messages between Lax and his girlfriend, Tiffany Hill about her purchasing a gun for him.

In early September 2016, FBI agents told Detective Jason Judd of the Topeka Police Department that a man named Cleo Clemons was hiding a gun at his home and that the gun was related to Lax. On September 7, 2016, Judd went to Clemons' home and, after Clemons consented to a search, officers found a silver and black 40-caliber Smith and Wesson handgun in a filing cabinet in Clemons' bedroom closet. Clemons, a longtime family friend of Lax's mother, Leonna Donnelly, said that Donnelly had called him and asked him to pick up an unidentified item from under the porch of her home. When Clemons looked under Donnelly's porch, he found a gun wrapped in a hat and a shirt; he took the items home and put them in his filing cabinet. The police traced the gun and discovered that Hill had bought it at a pawn shop in Topeka in April 2016. Forensic testing showed that fired cartridge cases recovered at the scenes of the May 2016 and June 2016 shootings had been fired from the gun.

On September 21, 2016, Hill was indicted in federal court for making a straw purchase of the gun. Although at first reticent, Hill eventually admitted that she had bought the gun at Lax's request and had given the gun to Lax. Hill also said that Lax told her in May 2016 that he had just shot Praylow and in June 2016, Lax told her that he and a friend had shot at Praylow's sister's home. The white Grand Prix used in the shootings belonged to Hill, but she let Lax drive the car at the time.

On February 27, 2017, the State filed an amended complaint, charging Lax with one count of attempted first-degree murder, one count of intentional aggravated battery resulting in great bodily harm, one count of criminal discharge of a firearm at an occupied dwelling, and one count of criminal possession of a firearm. There were several pretrial motions filed in the case, but none related to this appeal.

The four-day jury trial began on May 14, 2018. The State presented evidence from 18 witnesses and over 100 exhibits establishing the above facts. The State also presented expert testimony regarding gang culture. Lax did not testify at trial, but he asserted a general denial defense to both shootings, attacking the credibility of Praylow and Hill as witnesses. During the jury instruction conference, Lax informed the district court that he wanted to stipulate to two elements of the charge of criminal possession of a firearm. Lax agreed to stipulate that he was convicted of a felony within the past 10 years and that he was not found to be in a possession of a firearm in that prior felony conviction.

The jury found Lax guilty of all charges. On August 30, 2018, the district court sentenced Lax to 554 months' imprisonment for attempted first-degree murder, to run concurrent with 38 months' imprisonment for aggravated battery, 11 months' imprisonment for criminal discharge of a firearm at an occupied dwelling, and 7 months' imprisonment for criminal possession of a firearm. Lax timely appealed the district court's judgment.

Was the Attempted First-Degree Murder Charge Duplicitous?

On appeal, Lax first claims that Count 1 of the amended complaint charging him with attempted first-degree murder was duplicitous. Count 1 charged Lax with attempted first-degree murder of Praylow committed between May 3, 2016 and June 25, 2016. Lax asserts that the complaint was duplicitous because it contained charges for two separate crimes of attempted first-degree murder in a single count. Lax's argument focuses only on the language of the amended complaint, he makes no challenge to the jury instructions. But in arguing that the error was not harmless, Lax asserts that the jury could have convicted him of attempted first-degree murder without unanimously agreeing on which allegation supported the charge.

For its part, the State agrees that Count 1 of the amended complaint is duplicitous but asserts that any error was harmless. Resolving whether Count 1 of the amended complaint is duplicitous requires examination of the charging document, which is a question of law. An appellate court exercises unlimited review over questions of law. State v. Ruiz, 51 Kan.App.2d 212, 223, 343 P.3d 544 (2015).

Lax acknowledges that he did not raise this issue in district court. Generally, Kansas appellate courts do not address issues for the first time on appeal unless at least one of three recognized exceptions apply:

"'"(1) [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision."' [Citation omitted.]" State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020).

Lax asserts that the first exception applies here, but he makes no argument to explain why. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018) (holding that the failure to explain why an issue should be considered for the first time on appeal is fatal). He also invokes the second exception "because duplicitous charges implicate the fundamental right to a unanimous verdict." The State asserts that we should not consider this issue for the first time on appeal because none of the exceptions apply.

The Kansas Supreme Court has stated that ...