State of Kansas v. Paul Guebara

Topeka, Kansas criminal defense lawyer represented the Defendant charged with criminal-possession-of-a-weapon.

A man was shot in Garden City, and he identified Guebara as the shooter.

According to the victim, Guebara had followed him after an argument at a poker game

and then shot the victim as he exited his truck. Officers who investigated the shooting

eventually enlisted Guebara's daughter and her fiancé to record a series of conversations.

In those conversations, Guebara's friends and family discussed how to get rid of the gun

Guebara had used. Officers later recovered a stainless-steel .357 revolver that had been

concealed in the living room chair of a close friend of Guebara's brother-in-law. The

panel below described these facts in greater detail, but we need not restate them to

resolve the issues before us. See Guebara, 2023 WL 2194542, at *1-5.

The State charged Guebara with one count of attempted first-degree murder and

one count of criminal possession of a weapon by a felon. At that time, criminal

possession of a weapon was codified at K.S.A. 2014 Supp. 21-6304. One way to violate

that statute was by possessing a weapon after being convicted "within the preceding 10

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years" of certain enumerated felonies. See K.S.A. 2014 Supp. 21-6304(a)(3)(A). The

State alleged that Guebara had violated that provision because he had been released from

prison within the past 10 years for first-degree murder, one of the enumerated felonies.

See State v. LaGrange, 294 Kan. 623, Syl. ¶ 3, 279 P.3d 105 (2012) (10-year statutory

weapons ban begins when offender is released from prison). He was convicted of that

offense in 1983 and sentenced to life in prison. Our court affirmed his conviction. See

State v. Guebara, 236 Kan. 791, 799, 696 P.2d 381 (1985). Guebara was later paroled.

Before trial, Guebara conveyed that he would stipulate to his prohibited status as a

prior felon. The stipulation that Guebara and the State agreed to was admitted into

evidence during Guebara's trial and later included in the jury instructions. It said that

Guebara "had been released from prison for a felony crime" within the last 10 years:

"51.020. Stipulations and Admissions:

"The following facts have been agreed to by the parties and are to be considered by you

as true:

"1. The defendant within 10 years preceding February 24, 2015, had been

released from prison for a felony crime.

"2. The defendant was not found to be in possession of a firearm at the time of

the prior crime, and has not had the prior conviction expunged or been

pardoned for such crime."

Consistent with the procedures for stipulations in criminal-possession cases that we laid

out in Lee and Mitchell, the State also introduced the certified journal entry of Guebara's

1983 murder conviction outside the jury's presence. See Mitchell, 285 Kan. at 1079;

Lee, 266 Kan. at 815-16. The district court admitted the journal entry "for purposes of

completing the record" but stated that it would not "be made available to the jury,"

which was "consistent with [the court's] understanding of what case law provides for and

allows." But the court failed to follow one of the procedures set out in those cases—it did

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not consult Guebara "outside the presence of the jury" to secure his "voluntary waiver

of the right to have the State otherwise prove [the defendant's felon] status beyond a

reasonable doubt to the jury." Mitchell, 285 Kan. at 1079 (citing Lee, 266 Kan. at 815-

16).

At the end of a 7-day trial that included more than 100 exhibits and testimony

from 23 witnesses, the jury found Guebara guilty as charged. A slew of posttrial motions

were filed by Guebara's trial attorney, by a new attorney appointed by the court, and by

Guebara himself—so many, in fact, that sentencing did not take place until three years

after his conviction.

Two sets of those motions are relevant to the issues before us. First, Guebara and

his new attorney filed motions for a new trial based on ineffective assistance of trial

counsel. After a two-day evidentiary hearing, the district court denied the motion in a 63-

page decision that scrutinized each of the many claims Guebara had made. Second,

Guebara and his attorney filed motions for a new trial based on the State's disclosure that,

starting about 14 months after the trial, the lead detective began a sexual relationship with

Guebara's daughter, who had been a confidential informant in the investigation and a key

witness at trial. Guebara believed the relationship had started during the investigation.

The district court found that portions of two police files contained discoverable

information and ordered they be provided to Guebara. At a hearing on the motion, the

court said that once Guebara's attorney reviewed the second file, he could decide whether

there was evidence to "get this motion off the ground to a point where you really want to

pursue it." The attorney did not pursue the motion.

At sentencing, the district court imposed a controlling 586-month prison sentence

for attempted first-degree murder. It imposed a concurrent eight-month prison sentence

for criminal possession of a weapon. Guebara appealed to the Court of Appeals.

7

After a sequence of events discussed below, a motions panel of the Court of

Appeals allowed Guebara to proceed pro se. As a result, Guebara prepared all the

relevant appellate filings here without the help of an attorney. His brief raised many

challenges.

After Guebara filed that brief, we decided Valdez. That case was largely about

K.S.A. 2022 Supp. 21-5705's rebuttable intent-to-distribute presumption, but it also

addressed whether a generic prior-felony stipulation like the one here was sufficient to

support a criminal-possession conviction under the enumerated-felonies subsection.

Valdez, 316 Kan. at 17-20. We determined that a generic stipulation was insufficient.

Chief Judge Arnold-Burger—the presiding judge on the panel assigned to hear Guebara's

appeal—ordered Guebara and the State to address Valdez. Guebara argued that the

generic stipulation provided insufficient evidence; the State argued that the stipulation

was sufficient under Lee and the United States Supreme Court's decision in Old Chief v.

United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).

In an opinion written by Chief Judge Arnold-Burger, the panel applied Valdez

and reversed Guebara's criminal-possession conviction, but it otherwise rejected his

challenges and affirmed his attempted first-degree-murder conviction. Guebara, 2023

WL 2194542, at *18-19, 23. The panel decided that resentencing was unnecessary

because the 8-month criminal-possession sentence ran concurrent to Guebara's 586-

month attempted-murder sentence. 2023 WL 2194542, at *19; see Valdez, 316 Kan. at 20

(remand for resentencing unnecessary when controlling sentence and applicable

postrelease term not affected). Judge Malone wrote a concurrence acknowledging that

Valdez controlled this appeal. But he wrote separately "to state [his] view that the holding

in Valdez is misguided and conflicts with the Kansas Supreme Court's own precedent."

2023 WL 2194542, at *23 (Malone, J., concurring). In his view—which we expand on

below—Valdez and Lee are irreconcilable, and he urged this court to resolve the conflict.

8

The State petitioned our court for review. It argued that we should affirm

Guebara's conviction under Old Chief and Lee. And it asked us to reverse Valdez or at

least clarify how it fits into the Lee framework. Guebara—who is still acting pro se—also

petitioned for review, renewing many challenges he had raised in his appellate brief.

Finally, the State also filed a conditional cross-petition for review. In that filing, the State

argued that the panel was wrong to declare one of the trial witnesses "unavailable" under

the Confrontation Clause of the Sixth Amendment to the United States Constitution.

We granted review of the three petitions and placed the case on the November

2023 summary-calendar docket. As a result, we decide this case based on the petitions for

review and the briefs. See Supreme Court Rule 7.01(c)(4) (2023 Kan. S. Ct. R. at 42)

("When a case is placed on the summary calendar, it is deemed submitted to the court

without oral argument unless a party's motion for oral argument is granted."). Jurisdiction

is proper. See K.S.A. 60-2101(b) (providing for Kansas Supreme Court review of Court

of Appeals decisions).

ANALYSIS

The principal issues here involve stipulations to prior felonies in criminalpossession-of-a-weapon cases, so we begin our discussion there. First, we explain how

Valdez aligns with our caselaw. Then, we apply our caselaw to Guebara's stipulation. We

agree with the Court of Appeals panel that Guebara's generic stipulation was inadequate.

But we do not agree that Guebara's criminal-possession conviction should be reversed.

After resolving the issues related to the stipulation, we turn our attention to the

many challenges Guebara raises in his pro se briefing. We agree with the panel that none

of them warrant reversal of Guebara's convictions. Finally, we address the State's crosspetition and explain why prudential considerations support our decision not to reach the

merits of the panel's Confrontation Clause holding.

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I. Valdez Does Not Contradict Our Caselaw on Prior-Felony Stipulations in CriminalPossession-of-Weapon Cases

The State asks us to reverse the Court of Appeals panel and reinstate Guebara's

criminal-possession conviction. In its view, Guebara's generic stipulation to "a felony

crime" provides sufficient evidence to satisfy the prohibited-status element because Lee

requires the parties to stipulate that the defendant is "a prior convicted felon" without

"further elaboration" and without disclosing "the number and nature of the prior

convictions." Lee, 266 Kan. 804, Syl. ¶ 4. Thus, the State argues we contradicted our

earlier caselaw when we held in Valdez that a generic stipulation to "a felony" was

inadequate. Judge Malone agreed in his concurring opinion. But we believe the State and

Judge Malone's concurring opinion focus too narrowly on Lee without accounting for our

court's later caselaw, especially Mitchell.

Stipulations are commonplace in criminal-possession-of-a-weapon cases because,

otherwise, "the State would prove a defendant's [prohibited-felon] status by [introducing]

court records showing a defendant's prior felony," and those records might include details

that "run the risk of unfairly prejudicing the jury against the defendant based on his or her

past crimes." State v. Housworth, No. 115,836, 2017 WL 2834502, at *15 (Kan. App.

2017) (unpublished opinion). As the United States Supreme Court has recognized, that

risk of unfair prejudice is "especially obvious" when, as here, "a prior conviction was for

a gun crime or one similar to other charges" in the case. Old Chief, 519 U.S. at 185. In

fact, the Court has held that the risk of unfair prejudice is so acute that prosecutors are

required to accept defendants' offers to stipulate to their prohibited-felon status in most

cases. See 519 U.S. at 191-92. And our court adopted that same position in Lee. 266 Kan.

at 815-16.

10

The controlling question in Lee, like Old Chief, was whether the prosecution's

evidence establishing the defendant's prior felony was admissible under the rules of

evidence, notwithstanding the defendant's offer to stipulate to his prohibited status as a

convicted felon. The issue in Lee pitted K.S.A. 60-445, which allows a district court to

exclude evidence that unfairly prejudices the jury, against the common-law rule entitling

the prosecution "'to prove its case free from any defendant's option to stipulate the

evidence away.'" 266 Kan. at 810. Lee recognized that both a defendant's stipulation and

a copy of his prior felony conviction are equally probative of the defendant's prohibitedfelon status under the criminal-possession statute, but only the former avoids the risk of

undue prejudice to the defendant. Thus, Lee held that the district court abused its

discretion by rejecting the defendant's offer to stipulate and allowing the State to

introduce evidence of his prior felony conviction under K.S.A. 60-445. 266 Kan. at 813-

15.

Owing to that limited focus, Lee did not closely address the adequacy of the

stipulation—that issue was not before the court. Instead, it adopted procedures the Florida

Supreme Court, following Old Chief, had laid out in Brown v. State, 719 So. 2d 882, 889

(Fla. 1998). Those procedures required a district court to (1) approve the defendant's

requested stipulation, (2) allow the State to place the prior judgment and sentence into the

record, (3) prevent the State from disclosing that information to the jury, (4) obtain a

voluntary waiver of the defendant's right to have the State prove the prohibited-status

element beyond a reasonable doubt to the jury, (5) recognize that the stipulation satisfied

the prosecution's burden of proof for the prohibited-status element, and (6) instruct the

jury that it may consider the prohibited-status element proven by agreement of the

parties. Lee, 266 Kan. 804, Syl. ¶ 4. But Lee adopted those procedures without addressing

the differences between the Kansas criminal-possession statute and the comparable

Florida and federal statutes.

11

Those differences are crucial when considering the adequacy of the stipulation.

The federal criminal-possession statute at issue in Old Chief prohibited (with limited

exceptions) possession of a firearm by any person convicted of "'a crime punishable by

imprisonment for a term exceeding one year.'" Old Chief, 519 U.S. at 174 (quoting 18

U.S.C. § 922[g][1]). And the Florida statute prohibited possession by a person

"[c]onvicted of a felony." Fla. Stat. § 790.23(1)(a) (1995). But the relevant section of the

Kansas statute was narrower, prohibiting possession by a person convicted of only certain

felonies. K.S.A. 21-4204(a)(4)(A) (Furse). So while a stipulation to "a felony crime"

would have been sufficient to establish that the defendant was prohibited from possessing

a weapon under the federal or Florida statutes, the holdings from Old Chief and Brown

did not map neatly onto Kansas law.

But nine years after Lee, our court decided Mitchell. There, we held that the

prosecution's burden of proof is satisfied when the defendant stipulates that a prior

conviction "prohibited [the defendant] from owning or possessing a firearm on the date in

question." Mitchell, 285 Kan. at 1079. Although our court did not expressly depart from

Lee, that language makes clear the stipulations under the Kansas criminal-possession

statute must be to something more than "a felony crime." That is, because only certain

felonies trigger the Kansas statute, the stipulation must establish that the defendant has

committed a prior felony that prohibited them from possessing a weapon on the date in

question. Without that extra detail, a jury cannot conclude beyond a reasonable doubt that

the State had proved the prohibited-status element of the criminal-possession charge.

And since then, the stipulations in many of the criminal-possession cases we have

heard have included language in line with Mitchell. See, e.g., State v. Johnson, 310 Kan.

909, 910, 453 P.3d 281 (2019) (stipulation provided that prior juvenile adjudication

"'prohibited him from owning and possessing a firearm on October 14, 2013'"); State v.

Sims, 308 Kan. 1488, 1495, 431 P.3d 288 (2018) (The defendant stipulated that he was

"'convicted of a felony offense . . . within the ten years preceding'" and that he "'was

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prohibited [] from owning or possessing a firearm on June 9, 2013.'"); State v. Logsdon,

304 Kan. 3, 14, 371 P.3d 836 (2016) ("The parties stipulated Logsdon was a felon and

was prohibited from possessing a firearm."); State v. Burnett, 300 Kan. 419, 444, 329

P.3d 1169 (2014) ("[H]e was released from prison for a felony, which prohibited him

from lawfully possessing a firearm on July 7—a fact that he stipulated to and was an

essential element of the crime of criminal possession of a firearm charged in this case.");

State v. Dobbs, 297 Kan. 1225, 1231, 308 P.3d 1258 (2013) ("Dobbs stipulated he had a

prior felony conviction and was prohibited from possessing a firearm on the date of the

shooting.").

Then in Valdez, we concluded that insufficient evidence supported a criminalpossession conviction because the stipulation said only that the defendant had committed

"'a felony,'" and thus "there is no factual basis or inference to convince us the jury could

have found the essential—yet missing—element from what it was given." 316 Kan. at 20.

That holding tracks Mitchell. Because Kansas' possession-of-a-weapon ban applies to

people who have committed only certain felonies, the generic stipulation in Valdez to "a

felony" did not satisfy the prosecution's burden because it failed to establish that the

defendant was prohibited from possessing a firearm on the date in question. So we

disagree that Valdez deviates from our earlier caselaw.

Of course, we acknowledge that we did not explain these nuances in Valdez. And

as Judge Malone pointed out, Valdez included language inconsistent with Lee. Guebara,

2023 WL 2194542, at *24 (Malone, J., concurring). For example, Valdez faulted the

district court for not instructing the jury "what [the defendant's] prior crime was" and for

withholding the certified journal entry of the defendant's prior conviction from the jury.

Valdez, 316 Kan. at 19-20. In Lee, however, our court had said that "[n]either [those]

documents nor the number and nature of the prior convictions should be disclosed to the

trial jury." Lee, 266 Kan. at 815-16. Despite those passing comments, the essential

holding in Valdez is that a generic stipulation to a prior felony provides insufficient

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evidence to support a conviction under the Kansas criminal-possession statute because

only certain felonies trigger the weapons ban. Even so, we recognize that our failure to

spell all this out has generated uncertainty about the law governing prior-felony

stipulations in criminal-possession cases. We have endeavored to resolve that uncertainty

here.

Finally, before applying this framework to Guebara's trial proceedings, it is useful

to address the procedures for prior-felony stipulations, which our court adopted in Lee

and largely reiterated in Mitchell. See Mitchell, 285 Kan. at 1079. We are inclined to

address those procedures here because they, too, have generated some confusion. For

example, a Court of Appeals panel has questioned whether they amount to only "'best

practices.'" State v. Brooks, No. 113,636, 2017 WL 839793, at *10 (Kan. App. 2017)

(unpublished opinion). And during the trial proceedings here, the attorneys and district

court appeared unsure of the applicable procedures and controlling law. As a result, we

wish to emphasize three points.

First, when requested by a defendant charged with unlawful possession of a

weapon, a district court must approve a stipulation that the defendant had committed a

prior offense that prohibited the defendant from owning or possessing a weapon on the

date in question. See Mitchell, 285 Kan. at 1079. That stipulation is evidence that satisfies

the prosecution's burden of proving the prohibited-status element of the criminalpossession charge. See Old Chief, 519 U.S. at 186 (a defendant's "proffered admission

would, in fact, [be] not merely relevant but seemingly conclusive evidence of the

element"). The district court should instruct the jury that it can consider that fact proven

by agreement of the parties and ensure that the nature and number of the prior felonies is

not otherwise disclosed to the jury.

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Second, the district court must obtain a jury-trial waiver before accepting a

"prohibited-felon" stipulation in a criminal-possession case. Arguably, Lee and Mitchell

already required that, since those cases instructed the district court to consult the

defendant "outside the presence of the jury" to secure "his voluntary waiver of the right to

have the State otherwise prove his [prohibited-felon] status beyond a reasonable doubt to

the jury." Mitchell, 285 Kan. at 1079 (citing Lee, 266 Kan. at 815-16). But even if our

court were insufficiently clear in those cases, we expressly held in Johnson that a

stipulation to the prohibited-status element of a criminal-possession charge requires a

jury-trial waiver. 310 Kan. at 918-19.

And third, the State may, but is not required to, submit a certified journal entry of

the prior felony outside the presence of the jury. See Lee, 266 Kan. 804, Syl. ¶ 4 ("[T]he

State may place into the record, at its discretion, the actual judgment(s) and sentence(s) of

the prior felony conviction(s)."). The purpose of that document is not to furnish the jury

with evidence establishing the prior-felony element; as we have said above, the

stipulation itself provides sufficient evidence. Instead, the journal entry protects the

State's legitimate interest in developing a record for appeal that, in the event of errors,

would allow the State to argue that it was prepared to put forth conclusive evidence of the

defendant's status as a prohibited felon had the defendant contested that element. See

Mitchell, 285 Kan. at 1077 (Lee "specifically requires the district court to admit the actual

judgment(s) and sentence(s) of the prior felony conviction(s) into the record without

disclosing them to the jury, thereby protecting the State's interest in proving all of the

elements of the defendant's status.").

With this framework in mind, we now consider whether the trial proceedings

involving Guebara's stipulation involved any errors and, if so, whether reversal is

warranted.

15

II. Guebara's Prior-Felony Stipulation Was Inadequate, and the District Court Failed

to Obtain a Jury-Trial Waiver Before Accepting the Stipulation, but Those Errors

Are Harmless Beyond a Reasonable Doubt

Guebara stipulated that within the previous 10 years, he had been "released from

prison for a felony crime." Based on the framework we just outlined, Guebara's generic

stipulation was inadequate because it failed to establish that he had been convicted of a

felony that would have prohibited him from owning or possessing a weapon on the day of

the shooting. But there was another error. As Guebara points out—and as the State

concedes—the district court failed to obtain a jury-trial waiver before accepting his

stipulation. As we held in Johnson, that waiver is required when a defendant stipulates to

an element of a crime because "the defendant has effectively given up" his or her federal

constitutional right to a jury trial on that element. 310 Kan. at 918-19.

The district court's failure to obtain a jury-trial waiver does not require reversal.

In Bentley, we decided that such an error was not "structural" (which would require

automatic reversal of the conviction) but was instead a constitutional error that appellate

courts should review under the constitutional harmless-error standard. Bentley, 317 Kan.

at 233-34. We determined that courts should conduct that harmless-error analysis

"through a more focused lens" and decide whether there is a "reasonable possibility" that

the failure to inform the defendant "of his right to jury trial led to his decision to enter the

stipulation." 317 Kan. at 234. We conclude that Guebara would have offered a stipulation

even if the court had advised him of his right to a jury trial on the element. The State was

prepared to present conclusive evidence of Guebara's prior murder conviction that

prohibited him from possessing a firearm on the date in question, and he would have had

no defense if the State had offered this evidence to the jury. Nor is there any suggestion

that Guebara meant to defend his case on that ground.

16

But what about the inadequate stipulation? When "an appellate court holds that

evidence to support a conviction is insufficient as a matter of law, the conviction must be

reversed." State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007). And in Valdez, we

held that a stipulation to "a felony" provided insufficient evidence for a conviction under

the Kansas criminal-possession statute, so we reversed the defendant's conviction. 316

Kan. at 20. The Court of Appeals panel here followed suit, reversing Guebara's

conviction.

In Valdez, however, the State had not addressed the proper remedy for a

stipulation error. And there was no indication from the record on appeal that the State had

offered a journal entry, outside the presence of the jury, establishing Valdez' prohibitedfelon status. Valdez, 316 Kan. at 19 (if the district court received evidence of Valdez'

prohibited-felon status, "it is not in the appellate record"). But here, the State argues that

the stipulation errors are harmless and the record includes a journal entry confirming

Guebara's prohibited-felon status.

We are persuaded that this is not a typical sufficiency-of-the-evidence situation. A

conviction based on insufficient evidence violates a defendant's due-process rights under

the Fourteenth Amendment to the United States Constitution. State v. Switzer, 244 Kan.

449, 450, 769 P.2d 645 (1989). As the United States Supreme Court has explained, "an

appellate reversal" for insufficient proof at trial "means that the government's case was so

lacking that it should not have even been submitted to the jury." Burks v. United States,

437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). And in that case, the prosecution

has no grounds to complain, "for it has been given one fair opportunity to offer whatever

proof it could assemble." 437 U.S. at 16.

By contrast, the State did assemble conclusive proof of Guebara's prior conviction

for first-degree murder, which establishes Guebara's prohibited-felon status. The State

was prepared at trial to call Guebara's parole officer, who had testified at his preliminary

17

hearing. The parole officer would have testified to Guebara's prohibited-felon status but

for Guebara's offer to stipulate. And the State submitted the certified journal entry of the

conviction into evidence outside the presence of the jury, a procedure our court expressly

contemplated in Lee and Mitchell. See Mitchell, 285 Kan. at 1077; Lee, 266 Kan. 804,

Syl. ¶ 4. In fact, the only thing stopping that evidence from reaching the jury was

Guebara's offer to stipulate to the prior conviction rather than contest it. See Lee, 266

Kan. at 815 (evidence of the "type and nature of the prior crime" may be admitted when

the defendant disputes the status of the prior conviction). We need not turn a blind eye to

these facts and conclude that the evidence here was so lacking that the charge should not

have even been submitted to the jury. As a result, although the stipulation was

inadequate, we believe the procedures for prior-felony stipulation in criminal-possessionof-a-weapon cases are unsuited for a standard sufficiency-of-the-evidence analysis.

Instead, the circumstances here are more "akin to a court's failure to submit an

element of the charged crime to the jury," which we discussed in Bentley. 317 Kan. at

233-34. As we recognized there, a constitutional harmless-error standard is appropriate

when the trial court "fails to secure a verdict on some elements of the crime, rather than

all of them" and the element "was not contested by the defendant and would not be

contested if the conviction were vacated and a new trial ordered." 317 Kan. at 233 (citing

Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d 35 [1999]). Here,

although the inadequate stipulation prevented the jury from finding Guebara guilty

beyond a reasonable doubt on one element of the criminal-possession charge, there was

adequate evidence supporting the remaining elements. And as we have emphasized,

Guebara did not contest his prior felony. Moreover, the stipulation procedures adopted in

Lee and Mitchell seemingly contemplate appellate review for harmlessness. Under those

procedures, the State may introduce the journal entry of the prior conviction "into the

record [but outside the presence of the jury], thereby protecting the State's interest in

proving all of the elements of the defendant's status." Mitchell, 285 Kan. at 1077.

18

A constitutional error is harmless only if the party benefitting from the error

demonstrates "beyond a reasonable doubt the error will not or did not affect the trial's

outcome in light of the entire record, i.e., when there is no reasonable possibility the error

contributed to the verdict." State v. Corey, 304 Kan. 721, 731-32, 374 P.3d 654 (2016). In

our view, the State has met that standard. The language of the stipulation was inadequate

to establish that Guebara had committed a prior felony that prohibited him from

possessing a weapon on the day of the shooting in Garden City. But had there been no

faulty stipulation (e.g., if Guebara had contested his prior conviction), the record shows

beyond a reasonable doubt that the State would easily have proved that element at trial

through the journal entry included in our record. And unlike Valdez, here, the State has

included the journal entry establishing Guebara's prohibited-felon status in the record on

appeal. This demonstrates that the stipulation error was harmless.

Having concluded that both stipulation errors were harmless beyond a reasonable

doubt, we reverse the panel's decision vacating Guebara's conviction for criminal

possession of a weapon and affirm the judgment of the trial court.

III. The Other Issues Raised by Guebara and the State Do Not Warrant Reversal

Guebara's petition for review raises many issues he raised in the Court of Appeals.

He argues that his trial counsel was constitutionally ineffective. He argues that the

prosecutor erred during closing argument by misdescribing the evidence. He argues that

the district court improperly allowed hearsay evidence. He argues that the State failed to

disclose exculpatory evidence. He argues that his right to appellate counsel has been

violated. And he argues that cumulative error denied him the right to a fair trial. The State

also raises another issue. In its view, the panel erred by concluding that one of the trial

witnesses was "unavailable" for Confrontation Clause purposes based on his limited

testimony and frequent failure to recall information.

19

Because we conclude that Guebara has either inadequately briefed or abandoned

several issues, we begin by addressing his right-to-appellate-counsel claim. Had he been

denied that right, he could hardly be blamed for those deficiencies. But as we explain

below, the reason Guebara is acting pro se is that he chose that path after the Court of

Appeals reasonably denied his motion for a third appellate attorney. We then address the

remaining issues raised by the parties and conclude that none of those challenges warrant

reversal of the panel's decision.

A. Guebara's Right to Appellate Counsel Was Not Violated, and the Court of

Appeals Did Not Abuse Its Discretion by Denying Guebara's Motion for a

Third Appellate Attorney

In his petition for review, Guebara argues that the Court of Appeals denied him

appellate counsel. The Appellate Defender's Office was at first appointed to represent

Guebara. The appellate defender filed a brief, but Guebara was unhappy with the

arguments that attorney made, so he moved for substitute counsel.

Because we have determined that the errors relating to Guebara's stipulation were harmless beyond a reasonable doubt, we affirm his convictions. Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed