Significantly, nothing in the trial informed the jury that Ortega's mistaken belief could be a valid defense. Contrary to the panel's conclusions and State's arguments, the elements instruction for attempted aggravated interference with parental custody did not provide this information—it simply instructed that intent was an element. Further, defense counsel's ability to present evidence and argue regarding the defense provided only part of what the jury needed. Without an instruction, the jury had no directions from the court about how to consider the information. Consequently, the only direction the jury received was misdirection in the form of the prosecutor's statement that the lack of notice was irrelevant and did not matter.
Because of the compounding effect of the errors in this case, the KSC applied a constitutional harmless error test and held that the state failed to prove beyond a reasonable doubt that the errors were harmless.
[Update: on remand, the prosecutor elected to not retry Ms. Ortega on the charge of attempted aggravated interference with parental custody and dismissed that charge.]