Another reckless criminal threat conviction reversed

Christopher M. Joseph and Carrie E. Parker won in State v. Lindemuth, No. 116,937 (Kan. August 28, 2020), obtaining a new trial in a Shawnee County criminal threat prosecution.  The COA had reversed Mr. Lindemuth's conviction on other grounds and the state had sought review. During that time, the KSC decided State v. Johnson (blogged about here), holding that the reckless criminal threat statute was unconstitutional. The KSC applied that precedent and held that the conviction had to be reversed and remanded for a new trial. Like Mr. Johnson, Mr. Lindemuth had been convicted based on both intentional and reckless criminal threat. Like Mr. Johnson, the KSC held that such circumstances required a new trial:

The circumstances contributing to the outcome in Johnson also exist in Lindemuth's case. First, the trial court instructed the jury on both mental states and provided their statutory definitions. . . . 

Second, neither the jury instruction nor the State's arguments directed the jury toward convicting Lindemuth based solely on one mental state or the other. The prosecutor and the court mentioned the requisite mental states several times but simply in a neutral way. For instance, during voir dire, the prosecutor said "[t]he defendant's charge in this case is that he threatened to kill with the intent or in reckless disregard. Meaning he didn't care of the outcome, which is scaring somebody."

Third, while telling the jury that its "agreement upon a verdict must be unanimous," the trial court did not instruct the jury it had to agree unanimously on whether Lindemuth acted either intentionally or recklessly.

Fourth, the jury verdict form stated, "We, the jury, find the defendant guilty of the crime of criminal threat (prior to Matthews leaving Oklahoma)." The jury did not indicate it had unanimously concluded Lindemuth made a criminal threat either intentionally or recklessly.

Finally, Lindemuth denied making any threatening statements to Matthews. So his alleged threat to commit violence and communication of it with the intent to place Matthews in fear—versus his reckless disregard of the risk of causing fear in another— obviously must come from other evidence.

The KSC concluded it could not discern whether the jury had concluded that Mr. Lindemuth committed criminal threat intentionally, so it reversed and remanded for a new trial.