Full Opinion (html_with_citations)

               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 122,961

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                  MICHAEL J. PEARCE JR.,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       Felony murder is statutorily defined as the killing of a human being in the
commission of, attempt to commit, or flight from any inherently dangerous felony.
Distribution of a controlled substance is designated in the statute as an inherently
dangerous felony.


2.
       Felony murder contains two causation elements. First, the death must lie within
the res gestae of the underlying crime. Second, there must be a direct causal connection
between the felony and homicide, which exists unless an extraordinary intervening event
supersedes the defendant's act and becomes the sole legal cause of death.


3.
       Criminal violence that erupts during a sale of drugs is not an extraordinary
intervening event. Such violence, when deadly, cannot supersede a defendant's criminal
participation in the sale and will not cut off his or her criminal liability for felony murder.



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4.
        Section 5 of the Kansas Constitution Bill of Rights does not guarantee defendants
the right to have a jury determine the existence of sentence-enhancing prior convictions
under the revised Kansas Sentencing Guidelines Act.


        Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed December 17, 2021.
Affirmed.


        Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and was on the brief
for appellant.


        Jason A. Vigil, assistant county attorney, argued the cause, and Elizabeth H. Sweeney-Reeder,
county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


        STANDRIDGE, J.: This is Michael J. Pearce's direct appeal following his
convictions for first-degree felony murder, criminal threat, and distribution of
methamphetamine. Pearce challenges his felony-murder conviction, arguing that the State
failed to establish a direct causal connection between his involvement in distributing
drugs and the death of the victim. But contrary to Pearce's argument, there was no
extraordinary intervening event that worked to sever the causal connection between the
victim's death and Pearce's participation in the underlying felony of methamphetamine
distribution. Pearce also argues the district court violated his common-law right to a jury
trial under section 5 of the Kansas Constitution Bill of Rights by making judicial findings
of his prior convictions to establish his sentence. But we recently rejected the same
section 5 challenge to criminal history in State v. Albano,
313 Kan. 638
, Syl. ¶ 4,
487 P.3d 750
 (2021). For these reasons, we affirm Pearce's conviction and sentence.



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                                          FACTS


      In the early morning hours of July 21, 2017, law enforcement was dispatched to
the area of 311th Street and Lookout Road, a two-lane gravel road in Miami County
between Osawatomie and Paola. Upon arrival, law enforcement discovered the body of
Heather Briggs trapped underneath an SUV. Law enforcement contacted two individuals
there: David Rhoades, who was trying to lift up the SUV, and Nichole Razo, who was
frantic and crying hysterically. Law enforcement later spoke with Curtis Cooley, who
was walking nearby. Briggs was pronounced dead at the scene.


      During the investigation, law enforcement identified and interviewed several other
witnesses and discovered that Briggs' death occurred during a drug deal. Razo arranged
through Cooley to purchase 7 grams of methamphetamine from Rhoades for $200. Razo
and Rhoades agreed to meet on Lookout Road. Razo drove there in her SUV with
Cooley, Seth Herron, and Kevin Stevens. April Lunsford drove another vehicle with
Rhoades, Briggs, and Pearce as passengers. Upon arrival, Rhoades met with Razo and
they exchanged the drugs and cash. A dispute then arose when both groups discovered
they had received a lesser amount of drugs and money than agreed upon. Briggs and
Pearce exited Lunsford's vehicle and argued with Razo through the driver's window of
the SUV. The argument appeared to be resolved when Razo returned the drugs to Pearce,
and he gave back her money. Razo then drove away, running over Briggs in the process.
Lunsford called 911 and left the area with Pearce. Rhoades and Razo stayed and tried to
lift the SUV off Briggs. Cooley, Stevens, and Herron ran from the scene; Cooley later
returned after the emergency vehicles arrived.


      The State filed charges against all of the above individuals for their involvement in
the events leading to Briggs' death. All but Stevens entered into plea agreements with the
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State that required them to testify against Pearce, who was charged with one count each
of first-degree felony murder based on the underlying felony of distribution of
methamphetamine, aggravated assault, criminal threat, and distribution of
methamphetamine.


       At Pearce's jury trial, the witnesses each testified about their recollection of the
moments before Briggs' death. Herron testified that when the argument about the drugs
and money broke out, Pearce pulled out a gun and waved it at Razo, stating: "'If the
money doesn't show, I'm going to shoot you guys.'" Herron said that because of Pearce's
threat, Razo drove off while Briggs was standing in front of the SUV. Herron claimed
that as Razo drove away, he heard three gunshots. On cross-examination, Herron testified
that shortly before Razo drove off, Razo told Briggs, "'Bitch, I'll run you over.'" But
Herron maintained that Razo left because she was scared when Pearce pulled out the gun
and that she was trying to get away.


       Razo testified that when Pearce approached her vehicle and returned her money in
exchange for the methamphetamine, he directed Briggs to weigh the drugs. Razo claimed
that Pearce said, "'Don't mess with me; if my dope is short, I will shoot you.'" When
asked whether Pearce made any movements like he had a gun, Razo said, "He was going
underneath his shirt, but I didn't wait to find out if he had a gun or not." According to
Razo, she told her passengers to put their heads down and "took off," only stopping after
realizing that she had hit Briggs. Razo testified that she did not mean to run over Briggs
and claimed that she only drove off because Pearce threatened to shoot up the car. Razo
denied she threatened to run over Briggs.


       Cooley testified that shortly before Razo ran over Briggs, he heard Pearce tell
Razo, "'Don't do anything stupid, or I'll shoot the car up.'" Cooley said that everyone


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panicked after the SUV stopped, and that he ran from the scene because he was afraid
Pearce might start shooting.


       Rhoades first testified that he did not see Pearce with a gun or make any
movements suggesting that he had a gun. Rhoades also denied hearing any gunshots and
denied that Pearce had been involved in the drug transaction. Rhoades claimed that the
sound the other witnesses had identified as gunshots was actually the sound of him hitting
the back of Razo's SUV with nunchucks to get her to stop. Rhoades later admitted that
when Pearce exited Lunsford's vehicle, Pearce said, "'I got this,'" and grabbed his pants as
though he might have a gun.


       Lunsford testified that she did not see Pearce with a gun and that she never heard
gunshots or saw anyone fire a weapon. According to Lunsford, Razo later admitted that
she never saw a gun, but she thought Pearce was reaching for one. Lunsford denied that
Pearce was involved in the drug deal or that he acted as an enforcer to the transaction.


       Stevens, who had declined the State's plea offer and was found not guilty of
criminal charges arising from Briggs' death, testified for the defense. Stevens testified
that he was asleep in Razo's vehicle and woke up to her arguing with Briggs. Stevens said
that Briggs beat on Razo's vehicle and told Razo to come out and fight her. Stevens
claimed that as Briggs walked away, Razo "hit the gas," steered her car toward Briggs,
and ended up hitting her. Stevens denied seeing Pearce at all during the incident and
further denied seeing anyone with a gun, hearing anyone threaten to shoot the car, or
hearing gunshots. On cross-examination, the prosecutor impeached Stevens with his prior
testimony from his jury trial. There, Stevens testified that shortly before Razo ran over
Briggs, he "heard someone say something about shooting up the car" and that he "heard a
couple of loud bangs" that he thought came from a gun.


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          The jury found Pearce guilty of first-degree felony murder, distribution of
methamphetamine, and criminal threat. The jury found him not guilty of aggravated
assault. Based on the severity level of the crimes Pearce committed and his criminal
history, the district court imposed a controlling sentence of 130 months plus life in
prison.


          Pearce filed this timely appeal.


                                             ANALYSIS


          Pearce raises two arguments on appeal. First, he argues the State failed to prove
the causation required to establish his guilt for felony murder. Second, Pearce argues the
use of his prior convictions to determine his sentence violated his jury trial rights under
section 5 of the Kansas Constitution Bill of Rights. We address each argument in turn.

1. Sufficiency of the evidence: felony-murder conviction

          Pearce challenges the sufficiency of the evidence supporting his felony-murder
conviction, arguing that the State failed to prove a sufficient causal connection between
his participation in the distribution of methamphetamine and Briggs' death.


          At the outset, the parties disagree on the applicable standard of review. Citing
State v. Sophophone,
270 Kan. 703, 704-06
,
19 P.3d 70
 (2001), Pearce claims that
whether a defendant is subject to the felony-murder rule based on the causal relationship
between the underlying felony and a victim's death is a question of law that is subject to
unlimited review. But the State correctly points out that Sophophone addressed the
specific legal issue of whether a defendant could be convicted of felony murder "for the
killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting
in self-defense." See
270 Kan. at 705
. Here, there is no similar question of law before us
                                                6
because Pearce does not allege that Briggs' death resulted from a lawful act by a third
party. See
270 Kan. at 706
 ("[I]t is only because the act which resulted in the killing was
a lawful one by a third party that a question of law exists as to whether Sophophone can
be convicted of felony murder."). Instead, the standard of review for determining whether
there is a causal connection between the underlying felony of distribution of
methamphetamine and Briggs' death requires us to examine the sufficiency of the
evidence. See State v. Beach,
275 Kan. 603, 611
,
67 P.3d 121
 (2003). The applicable
standard of review is well known:


                 "'When the sufficiency of the evidence is challenged in a criminal case, we
       review 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. An
       appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on
       the credibility of witnesses.'" State v. Colson,
312 Kan. 739
, 749-50,
480 P.3d 167
       (2021).


       Felony murder is statutorily defined as the killing of a human being "in the
commission of, attempt to commit, or flight from any inherently dangerous felony."
K.S.A. 2020 Supp. 21-5402(a)(2). Distribution of a controlled substance is expressly
designated in the statute as an inherently dangerous felony. See K.S.A. 2020 Supp. 21-
5402(c)(1)(N); K.S.A. 2020 Supp. 21-5705(a)(1). Consistent with the statutory definition,
the court instructed the jury that to find Pearce guilty of felony murder, the State had to
prove that (1) "[t]he defendant or another killed Heather Briggs" and (2) "[t]he killing
was done while defendant was committing, attempting to commit or fleeing from
Distribution of Controlled Substances-Methamphetamine." As for the causation required
to establish felony murder, this court has clarified:


                 "The felony-murder statute requires two elements of causation. First, the death
       must occur within the res gestae of the underlying felony. Second, there must be a direct

                                                     7
       causal connection between the felony and the homicide. Res gestae refers to acts that
       occurred 'before, during, or after the happening of the principal occurrence when those
       acts are so closely connected with the principal occurrence as to form, in reality, a part of
       the occurrence.' A direct causal connection exists unless an extraordinary intervening
       event supersedes the defendant's act and becomes the sole legal cause of death.


               "There are three factors examined in determining whether a direct causal
       connection is present: time, distance, and the causal relationship between the underlying
       felony and the killing. [Citations omitted.]" State v. Phillips,
295 Kan. 929, 940-41
,
287 P.3d 245
 (2012).


       In challenging the State's proof of causation, Pearce presents no argument on the
res gestae element. See State v. Arnett,
307 Kan. 648, 650
,
413 P.3d 787
 (2018) (An issue
not briefed is deemed waived or abandoned.). And we easily conclude that the State
established the first causation element because Briggs' death occurred either during or
shortly after the drug transaction.


       Turning to the second causation element, Pearce makes two arguments in which
he disputes a direct causal connection between Briggs' death and his participation in the
drug transaction. First, Pearce asserts that Razo's act of running over Briggs was the sole
cause of Briggs' death and constituted an extraordinary intervening event which
superseded any causal connection between her death and his involvement in the drug
sale. Second, he contends that Razo's act of killing Briggs is not subject to the felony-
murder rule because Razo was a buyer of the drugs and was therefore not a co-felon in
distributing them.




                                                     8
   a. Extraordinary intervening event


       In evaluating causation in a felony-murder case, "[o]nce it has been determined
that the death lies within the res gestae of the underlying crime, . . . the direct causal
connection can only be severed by an extraordinary intervening event." State v. Beltz,
305 Kan. 773
, 778,
388 P.3d 93
 (2017). To determine whether an intervening event is
extraordinary, we consider whether it was foreseeable. State v. Nesbitt,
308 Kan. 45
, Syl.
¶ 3,
417 P.3d 1058
 (2018) ("An intervening event does not qualify as extraordinary if it
was foreseeable.").


       Pearce argues that Razo's act of running over Briggs constituted an extraordinary
intervening event that severed any connection between her death and his participation in
the distribution of methamphetamine.


       But this court has held that "[c]riminal violence that erupts during a drug sale is
not an extraordinary intervening event. Such violence, when deadly, cannot supersede a
defendant's criminal participation in the sale and will not cut off his or her criminal
liability for felony murder." Beltz, 305 Kan. at 774-75, 779 (upholding felony-murder
conviction stemming from drug shootout where victim was not intended target of robbery
or shooting); see also State v. Jackson,
280 Kan. 541, 548-49
,
124 P.3d 460
 (2005) (drug
supplier's act of shooting purchaser was not an extraordinary intervening event that
superseded defendant's participation as intermediary in drug transaction); Beach,
275 Kan. at 613-14
 (direct causal connection existed between sale of methamphetamine and
victim's death during attempted robbery; robbery was not extraordinary intervening event
because defendant had knowingly created foreseeable target of violent crime by
participating in sale of methamphetamine).




                                               9
       This same rule holds true for a defendant who provokes a violent or defensive
response by using or threatening to use a deadly weapon to commit a dangerous crime.
See State v. Wilson,
308 Kan. 516
, 526,
421 P.3d 742
 (2018) ("Put simply, it is
foreseeable that violence begets violence."); State v. McClelland,
301 Kan. 815, 823
,
347 P.3d 211
 (2015) ("[The defendant] set off a chain of violent events when he planned on
robbing a house and brought a gun in furtherance of that plan."); Phillips,
295 Kan. at 942
 ("[T]he causal relation is also satisfied because it is foreseeable that violence will
erupt during an aggravated robbery in which the robber carries a gun. The very nature of
an aggravated robbery is violent."); Jackson,
280 Kan. at 549
 ("[The defendant] also
acknowledged that selling drugs is a dangerous business and that most people carry guns
to protect themselves during drug transactions.").


   Pearce does not challenge the fact that he participated in the drug sale. Indeed,
multiple witnesses testified that Pearce was directly involved in the dispute over the
drugs and money. Several witnesses also testified that Pearce had a gun, Pearce could
have had a gun, Pearce threatened to shoot up Razo's car, or that they heard gunshots.
Razo claimed that she would not have driven the car into Briggs but for Pearce's threat to
shoot up the car. For all of these reasons, Razo's act of hitting Briggs with her car did not
constitute an extraordinary intervening event that broke the causal chain to become the
sole cause of Briggs' death. Rather, it is foreseeable that the use or threatened use of a
gun would also increase the potential for violence that already exists at a drug sale. See
Wilson, 308 Kan. at 526 (finding it foreseeable that active shooter would "trigger the
deeply embedded human fight or flight reflex," thereby causing deadly defensive action
by others).




                                              10
   b. Application of felony-murder rule


       Next, Pearce contends that Razo's act of killing Briggs is not subject to the felony-
murder rule because Razo was buying, not selling, the drugs and was therefore not a co-
felon to the charged underlying felony—the distribution of methamphetamine. As
support for his argument, Pearce relies on this court's decisions in Sophophone,
270 Kan. 703
, and State v. Murphy,
270 Kan. 804
,
19 P.3d 80
 (2001), abrogated on other grounds
by State v. Martin,
285 Kan. 735
,
175 P.3d 832
 (2008).


       Pearce's reliance on Sophophone and Murphy is misplaced. Those two cases stand
for the legal proposition that "the felony-murder rule does not apply when the lawful acts
of either a law enforcement officer or a victim of a crime cause the death of a co-felon."
State v. Bryant,
276 Kan. 485, 490
,
78 P.3d 462
 (2003), abrogated on other grounds by
State v. Gleason,
277 Kan. 624
,
88 P.3d 218
 (2004); see Sophophone,
270 Kan. at 712-13
(law enforcement action causing death); Murphy,
270 Kan. at 809
 (victim action causing
death). Pearce does not allege that Razo's act of running over Briggs was lawful. And
Razo is neither a law enforcement officer nor a victim under these circumstances.
Although the State charged Pearce with criminal threat based on his alleged threats to
shoot Razo's car, Razo was hardly an innocent victim here. Rather, Razo was an active
participant in the events that led to Briggs' death. Cf. Murphy,
270 Kan. at 804-05, 809
(felony-murder rule inapplicable when killing caused by lawful acts of innocent victim of
aggravated robbery and kidnapping acting in self-defense to protect his residence and its
occupants).


       Pearce's suggestion that the felony-murder rule is inapplicable because Razo was
the buyer and not the seller or distributer of the methamphetamine is also flawed. Razo's
involvement in the drug distribution is irrelevant to establish Pearce's guilt for felony
murder. The question before the jury was whether Briggs' death occurred while Pearce
                                             11
was committing, attempting to commit, or fleeing from the underlying felony of
distribution of methamphetamine. See K.S.A. 2020 Supp. 21-5402(a)(2). Pearce does not
challenge the State's proof of his involvement in distributing methamphetamine. And
Briggs' death followed directly from criminal violence during this drug sale,
uninterrupted by any extraordinary intervening event. For these reasons, the evidence,
when viewed in a light most favorable to the prosecution, was sufficient to establish
beyond a reasonable doubt that Pearce was guilty of felony murder.


2. Section 5


       Pearce argues that the Kansas Sentencing Guidelines Act (KSGA) violates his
state constitutional right to a jury trial because it permits judicial fact-finding of prior
convictions that enhance a defendant's sentence without first requiring the State to prove
those convictions to a jury beyond a reasonable doubt. Pearce asserts that section 5 of the
Kansas Constitution Bill of Rights requires a jury, not a judge, to determine penalty-
enhancing prior conviction findings. Section 5 provides that "[t]he right of trial by jury
shall be inviolate." Section 5 preserves the jury trial right as it existed at common law in
1859 when the Kansas Constitution was ratified. State v. Albano,
313 Kan. 638
, 640-41,
487 P.3d 750
 (2021). Pearce claims that "[p]rior to Kansas' statehood, American common
law required any fact which increased the permissive penalty for a crime—inclusive of an
offender's prior criminal convictions—to be proven to a jury beyond a reasonable doubt."


       Pearce raises this constitutional argument for the first time on appeal. Generally,
constitutional grounds for reversal asserted for the first time on appeal are not properly
before the appellate court for review. State v. Daniel,
307 Kan. 428
, 430,
410 P.3d 877
(2018). Even so, we have recognized limited exceptions to this general rule. See State v.
Johnson,
309 Kan. 992
, 995,
441 P.3d 1036
 (2019) (listing three judicially created
exceptions to the preservation requirement). Pearce claims two of these exceptions apply
                                               12
here: (1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case and (2) resolution of the issue is
necessary to serve the ends of justice or to prevent the denial of fundamental rights. See
309 Kan. at 995. Pearce asserts that his constitutional challenge involves a pure question
of law and the denial of his fundamental right to a jury trial.


       In this instance there is no need to invoke an exception because this court recently
rejected the same argument made by Pearce in Albano, 313 Kan. at 640-41.


       In Albano, this court addressed whether the use of a defendant's criminal history—
without a finding by a jury—to increase the defendant's sentence violated section 5 of the
Kansas Constitution. We examined Kansas common law and noted that, in Kansas, juries
have traditionally determined guilt, and the role of the court is to determine punishment
and issues relevant to it, including a defendant's criminal history. Finding no authority to
support the contention that Kansas had adopted a common-law rule inconsistent with this
traditional division of functions when the Kansas Constitution was adopted in 1859, we
held that "[s]ection 5 of the Kansas Constitution Bill of Rights does not guarantee
defendants the right to have a jury determine the existence of sentence-enhancing prior
convictions under the revised Kansas Sentencing Guidelines Act."
313 Kan. 638
, Syl. ¶ 4.


       Because criminal history findings made to impose a sentence fall within the
exclusive purview of the court to determine punishment, the KSGA's method of
determining a defendant's criminal history does not implicate a defendant's right to a jury
trial under section 5 of the Kansas Constitution Bill of Rights. 313 Kan. at 656-57. For
this reason, Pearce's constitutional challenge would necessarily fail.


       Affirmed.


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