Improper parental discipline instruction results in reversal

Rick Kittel won in State v. Samuel White, No. 116,048 (Kan. App December 22, 2017), obtaining a new trial in a Sedgwick County aggravated child endangerment prosecution. The charges stemmed from an investigator finding Mr. White's children locked in a bare room in his house. The district court proposed giving an instruction on parental discipline as an affirmative defense. Mr. White objected because it would appear that he had use force on the children.  The COA agreed that the instruction was not factually appropriate:

The State presented no evidence there was improper physical contact between White and his children. The instruction as given discusses the use of "reasonable amount of force upon a child." From our review, the instruction's use of the word "force" refers to corporal punishment and there was no evidence presented of corporal punishment. If the reference can be construed as referring to the force of locking the door, then all of the evidence reflects the children's mother locked them in their room and when White came home, he just left the door locked. 

This court recognized the parental discipline instruction as an affirmative defense in State v. Wade, 45 Kan. App. 2d 128, 136-37, 245 P.3d 1083 (2010). We have been able to find only one other Kansas case, State v. McDuffie, No. 106,528, 2012 WL 3136492 (Kan. App. 2012) (unpublished opinion), discussing the defense of parental discipline. In both Wade and McDuffie, the defendants were charged with battery. Both defendants admitted to using physical force but argued the use of force was justified. Similarly, the cases cited in Wade supporting the parental discipline instruction all involved physical contact between the defendant and his or her child. We have been unable to find any cases in Kansas in which the defendant did not use physical force in disciplining the child when the defense of parental discipline was given by the district court.

Having found the parental discipline instruction in error, the COA went on to determine whether to reverse. Mr. White argued that the error should be structural, but the COA held that it would apply a constitutional harmless error test and then found that the state failed to adequately show harmlessness on appeal:

Given White's right to control his theory of defense, we find the giving of this instruction was error. Under the constitutional harmless error standard, as the party benefitting from the error—here, a theory of defense instruction the defendant did not want—the State must prove beyond a reasonable doubt the error would not or did not affect the outcome of the trial in light of the record as a whole. The State's brief fails to adequately address this issue. The State failed to show the district court's decision to give the affirmative defense instruction over White's objection did not affect the outcome of the trial. We find White is entitled to a new trial.

[Update: the state did not file a PR and the mandate issued on January 29, 2018.]