objection unless instruction in Kansas

2005K.S.A. 2004 Supp. 22-3414(3) provides: “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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” See State v. Evans, 270 Kan. 585, 588 , 17 P.3d 340 (2001).

2005K.S.A. 2004 Supp. 22-3414(3) provides: “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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” See State v. Evans, 270 Kan. 585, 588 , 17 P.3d 340 (2001).

2016See State v. Verser, 299 Kan. 776, 784 , 326 P.3d 1046 (2014) (holding that, if a party has not merely failed to object to a jury instruction but has instead invited error, we will not review the party’s argument regarding that issue on appeal unless the error is structural); see also K.S.A. 2015 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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the fail

2016See State v. Verser, 299 Kan. 776, 784 , 326 P.3d 1046 (2014) (holding that, if a party has not merely failed to object to a jury instruction but has instead invited error, we will not review the party’s argument regarding that issue on appeal unless the error is structural); see also K.S.A. 2015 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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the fail

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: "No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous." (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Broo

2000That statute provides in pertinent part as follows: ‘No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly die matter to which die party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.’ ” State v. Brooker, 27 Kan.

1994In State v. Deavers, 252 Kan. 149 , Syl. ¶ 4, 843 P.2d 695 (1992), we held: “No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating *55 distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous.

1994In State v. Deavers, 252 Kan. 149 , Syl. ¶ 4, 843 P.2d 695 (1992), we held: “No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating *55 distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous.

2020See K.S.A. 2019 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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous."); State v. Murrin, 309 Kan. 385, 392 , 435 P.3d 1126 (2019) (clear error for unpreserved instructional error claim).

2020See K.S.A. 2019 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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous."); State v. Murrin, 309 Kan. 385, 392 , 435 P.3d 1126 (2019) (clear error for unpreserved instructional error claim).

2019This is likely an important distinction from other claims of instructional error because our Supreme Court has explained jury nullification is the jury's "raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant." (Emphasis added.) State v. McClanahan, 212 Kan. 208 , Syl. ¶ 3, 510 P.2d 153 (1973).

2019This is likely an important distinction from other claims of instructional error because our Supreme Court has explained jury nullification is the jury's "raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant." (Emphasis added.) State v. McClanahan, 212 Kan. 208 , Syl. ¶ 3, 510 P.2d 153 (1973).

2016In other words, "[u]nder K.S.A. 22-3414(3), the failure to object to an instruction does not prevent appellate review but requires a determination that the instruction is clearly erroneous before relief can be granted." State v. Waggoner, 297 Kan. 94, 97 , 298 P.3d 333 (2013); see State v. Cheever, 304 Kan. 866, 884 , 375 P.3d 979 (2016) (Cheever II) (recognizing application of K.S.A. 22-3414[3] in death penalty appeal regarding state- law claim relating to penalty-phase instructions).

2016In other words, "[u]nder K.S.A. 22-3414(3), the failure to object to an instruction does not prevent appellate review but requires a determination that the instruction is clearly erroneous before relief can be granted." State v. Waggoner, 297 Kan. 94, 97 , 298 P.3d 333 (2013); see State v. Cheever, 304 Kan. 866, 884 , 375 P.3d 979 (2016) (Cheever II) (recognizing application of K.S.A. 22-3414[3] in death penalty appeal regarding state- law claim relating to penalty-phase instructions).

2016See State v. Verser, 299 Kan. 776, 784 , 326 P.3d 1046 (2014) (holding that, if a party has not merely failed to object to a jury instruction but has instead invited error, we will not review the party’s argument regarding that issue on appeal unless the error is structural); see also K.S.A. 2015 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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the fail

2016See State v. Verser, 299 Kan. 776, 784 , 326 P.3d 1046 (2014) (holding that, if a party has not merely failed to object to a jury instruction but has instead invited error, we will not review the party’s argument regarding that issue on appeal unless the error is structural); see also K.S.A. 2015 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 stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the fail

2013Standard of review We start by acknowledging that “[wjhere a trial objection to a jury instruction is different from the argument presented on appeal, a clearly erroneous standard of review applies.” State v. Ellmaker, 289 Kan. 1132 , Syl. ¶ 1, 221 P.3d 1105 (2009); see K.S.A. 22-3414(3) (A party must object before the juiy retires to consider its verdict, “stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”).

2013Standard of review We start by acknowledging that “[wjhere a trial objection to a jury instruction is different from the argument presented on appeal, a clearly erroneous standard of review applies.” State v. Ellmaker, 289 Kan. 1132 , Syl. ¶ 1, 221 P.3d 1105 (2009); see K.S.A. 22-3414(3) (A party must object before the juiy retires to consider its verdict, “stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”).

2012“An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” (Emphasis added.) State v. Washington, 293 Kan. 732, 740 , 268 P.3d 475 (2012).

2012“An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” (Emphasis added.) State v. Washington, 293 Kan. 732, 740 , 268 P.3d 475 (2012).

2010See State v. Vasquez, 287 Kan. 40, 51 , 194 P.3d 563 (2008); State v. Murdock, 286 Kan. 661, 684-85 , 187 P.3d 1267 (2008).

2010See State v. Vasquez, 287 Kan. 40, 51 , 194 P.3d 563 (2008); State v. Murdock, 286 Kan. 661, 684-85 , 187 P.3d 1267 (2008).

2006The statute dealing with this, K.S.A. 2005 Supp. 22-3414(3), requires us to then apply a clearly erroneous standard of review: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly die matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” (Emphasis added.) “ ‘Instructions are clearly erroneous only if the reviewing court is firmly c

2006The statute dealing with this, K.S.A. 2005 Supp. 22-3414(3), requires us to then apply a clearly erroneous standard of review: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly die matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” (Emphasis added.) “ ‘Instructions are clearly erroneous only if the reviewing court is firmly c

2005“An instruction is clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict had the jury been properly instructed.” State v. Graham, 275 Kan. 831, 833 , 69 P.3d 563 (2003).

2005“An instruction is clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict had the jury been properly instructed.” State v. Graham, 275 Kan. 831, 833 , 69 P.3d 563 (2003).

2005The failure to give a lesser included offense instruction is clearly erroneous “ 'only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Drennan, 278 Kan. 704, 712 , 101 P.3d 1218 (2004).

2005The failure to give a lesser included offense instruction is clearly erroneous “ 'only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Drennan, 278 Kan. 704, 712 , 101 P.3d 1218 (2004).

2004K.S.A. 2002 Supp. 22-3414(3) provides: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2004K.S.A. 2002 Supp. 22-3414(3) provides: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2004K.S.A. 2002 Supp. 22-3414(3) provides: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2004K.S.A. 2002 Supp. 22-3414(3) provides: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” The failure to give an instruction “ 1 “is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury

2003Opportunity shall be given to make the objections out of the hearing of the jury.” See State v. Crabtree, 248 Kan. 33, 39 , 805 P.2d 1 (1991).

2003Opportunity shall be given to make the objections out of the hearing of the jury.” See State v. Crabtree, 248 Kan. 33, 39 , 805 P.2d 1 (1991).

2003Saenz, 271 Kan. at 352 .

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: "No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous." (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Broo

2001The current version of the relevant part of the statute, K.S.A. 2000 Supp. 22-3414(3) says: "No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous." (Emphasis added.) For a discussion of the 1998 amendment, see State v. Saiz, 269 Kan. 657, 661 , 7 P.3d 1214 (2000); State v. Broo

2001In State v. Bell, 266 Kan. 896, 915 , 975 P.2d 239 (1999), this court discussed whether a trial court should instruct the jury on a lesser included offense and stated: *597 "It is not the function of an appellate court to determine whether the factual possibilities mentioned at trial should prevail.

2001In State v. Bell, 266 Kan. 896, 915 , 975 P.2d 239 (1999), this court discussed whether a trial court should instruct the jury on a lesser included offense and stated: *597 "It is not the function of an appellate court to determine whether the factual possibilities mentioned at trial should prevail.

2000State v. Henry, 263 Kan. 118, 131 , 947 P.2d 1020 (1997); State v. Eickman, 26 Kan.

2000State v. Henry, 263 Kan. 118, 131 , 947 P.2d 1020 (1997); State v. Eickman, 26 Kan.

2000State v. Henry, 263 Kan. 118, 131 , 947 P.2d 1020 (1997); State v. Eickman, 26 Kan.

1997Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” Regarding our standard of review of this issue, we noted in State v. Pierce, 260 Kan. 859, 868 , 927 P.2d 929 (1996): “No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous.

1997Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” Regarding our standard of review of this issue, we noted in State v. Pierce, 260 Kan. 859, 868 , 927 P.2d 929 (1996): “No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous.

1995State v. Edwards, 252 Kan. 860 , Syl. ¶ 3, 852 P.2d 98 (1993).

1995State v. Edwards, 252 Kan. 860 , Syl. ¶ 3, 852 P.2d 98 (1993).