Cumulative error requires consideration of all errors

Kasper Schirer won in State v. Cameron Taylor, No. 118,792 (Kan. October 8, 2021), obtaining a new trial in a Finney County marijuana possession, battery on a law enforcement officer, and criminal threat prosecution. The COA had ordered a new trial on the possession charge based on a suppression issue, but affirmed the remaining convictions despite finding four additional trial errors, includingviolations of in limine orders, and prosecutorial error in closing argument. The COA had found that the trial errors were individually and cumulatively harmless with regard to the remaining counts. The KSC granted review on whether the errors were harmless under the cumulative error rule and found that the COA had misapplied the cumulative error rule: 

At the outset, it is readily apparent the panel erred in three distinctive ways in its cumulative error analysis. First, it failed to consider the district court's erroneous denial of the marijuana evidence in its analysis. Second, it failed to apply Chapman's constitutional harmless error test, when at least three of the five errors implicated the Fourth and Fourteenth Amendments to the United States Constitution. Third, it failed to question whether the errors' cumulative effect savaged Taylor's credibility although it observed the jury's credibility determination affected the verdict. 

The KSC went on to apply the correct cumulative error test and concluded that a new trial was required on all counts:

With the burden on the State to show harmless constitutional error, we hold the prosecution fails to establish beyond a reasonable doubt that the cumulative effect of all five errors did not affect the trial's outcome. Had the jury believed Taylor's version of the incident—or just found his testimony created a reasonable doubt—the jury would have been legally required to return not guilty verdicts on the battery and threat charges.

As a result, the KSC reversed the counts affirmed by the COA and remanded the entire ase to the district court with directions to give Mr. Taylor a new trial.

Obstruction cannot occur until predicate offense completed

Caroline M. Zuschek won in State v. Jenkins, No. 122,800 (Kan. App. October 1, 2021) (unpublished), obtaining reversal of a Jackson County obstruction conviction. The state charged Ms. Jenkins with obstructing apprehension or prosecution of a crime for hiding in her boyfriend in her home when sheriff's officers came to arrest him for a probation violation warrant and lying to officers. Specifically, the state charged Ms. Jackson  with "knowingly harboring, concealing or aiding any person who . . . [h]as committed or who has been charged with committing a felony or misdemeanor under the laws of this state.".At a bench trial on stipulated facts, the district court concluded that the evidence did not support the obstruction charge because a probation violation warrant is not the same as having committed or being charged with a crime. But the district court found that, in a separate case, the state had separately charged Ms. Jackson's boyfriend with interference for hiding in Ms. Jackson's house to avoid arrest. The district court held that Ms. Jackson's actions constituted obstruction as it related to that predicate offense.  

The COA noted the differences between the offenses of obstruction and the doctrine of aiding and abetting:

To be guilty of obstruction . . . a defendant must harbor, conceal, or aid a person who has already committed a crime. In other words, the predicate crime of the other person must have been completed at the time the defendant's obstruction occurs. 

. . . .

We need not delve into the historical foundations for the crimes of aiding a felon or obstruction. Basically, they criminalize as a distinct offense helping someone who has already committed a crime to evade capture. By contrast, under the statutory principles of criminal liability in Kansas, if one person aids or assists another person who is in the process of committing a crime, the person rendering the aid or assistance is guilty of that crime. 

. . . .

Duble's interference with the law enforcement officers looking to take him into custody for the probation violation continued throughout the time he hid in Jenkins' house and was ongoing when Jenkins told the officers he was not there. In short, Duble's crime had not been completed at the time Jenkins misled the officers. Jenkins, therefore, could not be guilty of obstruction in violation of K.S.A. 2020 Supp. 21-5913 on the stipulated evidence and the charge as the district court revised it.

As a result, the COA reversed the conviction, vacated the sentence, and entered a judgement of acquittal.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

IAC stemming from failure to file timely notice of alibi was shown even without trial attorney's testimony

Jacob Nowak won in Rucker v. State, No. 122,643 (Kan. App. October 1, 2021) (unpublished), obtaining a new trial in a Wyandotte County criminal threat and criminal discharge at an occupied building prosecution. Mr. Rucker filed a motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel for among other reasons, failing to file a timely notice of alibi. After the district court initially denied Mr. Rucker’s motion, the COA remanded for evidentiary hearing on several claims, including failure to file a timely notice of alibi. On remand, the district court found that Mr. Rucker had not shown either deficient performance nor prejudice. 

In particular, the district court had faulted Mr. Rucker for failing to call trial counsel at the evidentiary hearing. The COA acknowledged that it was unusual, but not fatal to the deficient performance claim:

Rucker's decision not to call [trial counsel] is unusual given that the prior panel remanded the matter for an evidentiary hearing on claims of ineffective assistance of counsel.

. . . .

That said, at times it is clear from the record and circumstances that trial counsel's actions were not strategic even without testimony from trial counsel. Because Rucker did not call [trial counsel] as a witness at the evidentiary hearing, the only explanation in the record for why [trial counsel] did not timely file the alibi notice comes from the October 23, 2012, pretrial hearing. There, [trial counsel] admitted that he had the list of the names of Rucker's alibi witnesses before the deadline to file the notice but claimed the information was "incomplete . . . to comply with the statute." [Trial counsel] did not elaborate on the information he needed to file the notice promptly, and the district court did not ask about the matter.

The COA also held that the deficient performance met the prejudice test for ineffective assistance of counsel:

Considering the totality of the evidence in the record, we find the confidence in the outcome of Rucker’s case is sufficiently undermined by the fact that at least four witnesses were not allowed to testify at trial that Rucker was with them at or near the time of the shooting. . . Rucker did not receive a fair trial because his counsel failed to timely file the alibi notice for no apparent reason.

As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

Affirmatively misadvising client regarding calculation of criminal history score justifies plea withdrawal

Jennifer C. Roth won in State v. McKinzy, Nos. 121,464 (Kan. App. October 1, 2021) (unpublished), obtaining remand for further proceedings in a Wyandotte district court murder prosecution. The state charged Mr. McKinzy with first-degree murder. The parties entered into an agreement where Mr. McKinzy would plead guilty to second-degree murder and a count of aggravated battery in a separate case. Prior to sentencing, Mr. McKinzy filed a motion to withdraw his plea because his attorney affirmatively misinformed him that he would be criminal history C for the murder conviction and criminal history B for the aggravated battery conviction. In fact, under clear Kansas law, Mr. McKinzy fell into criminal history category B for each (because the aggravated battery conviction counted as criminal history for the murder case). 

The COA had little trouble holding that Mr. McKinzy was not represented by competent counsel, one of the factors to consider to determine whether to allow a person to withdraw a guilty plea:

This record shows that the defense counsel's performance can be fairly characterized as "lackluster" advocacy. This was not simply a case of miscalculating a criminal history score. McKinzy's attorney represented him while pleading to two high level felonies, and the attorney did not know, let alone understand, that multiple convictions on the same day in different cases count against each other for criminal history purposes. And, more importantly, failed to inform McKinzy of this very important sentencing rule before entering pleas of guilty. 

The COA also observed that the district court appeared to confuse the standard for a post-sentencing motion to withdraw plea (requiring constitutionally deficient counsel) and a pre-sentencing motion to withdraw plea (requiring only good cause): 

We have two problems with the district court’s ruling. The first is it ignored the defense attorney’s admission of incompetence. The second problem is that the court used an incorrect test for a presentence motion to withdraw a plea.

The COA reversed the denial of the plea withdrawal motion and remanded for further proceedings. 

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

Failure to argue voluntary act requirement in statutory rape case was IAC

Richard Ney and David L. Miller won in State v. Dinkel, No. 113,705 (Kan. September 24, 2021), obtaining a new trial in a Saline County statutory rape prosecution. The Kansas Supreme Court had previously considered this case (blogged about here) and held that a voluntary act was an element of a statutory rape prosecution. In the previous decision, the KSC remanded to determine whether Ms. Dinkel's attorney was ineffective for failing to make any argument regarding the actus reus requirement. The district court held that Ms. Dinkel's attorney was not ineffective. A majority of the KSC disagreed:

It is true [defense counsel] presented Dinkel's version of the events to the jury. But nothing in his arguments or the instructions told the jury how it could use these defenses. The jury was instructed to apply the law that the court gave it. That law provided that Dinkel was guilty of rape if sexual intercourse occurred at certain times, Dinkel knowingly engaged in the act, and K.H. was under 14 years old. It instructed the jury that Dinkel acted knowingly if she was aware of the nature of her conduct. The State proved that sexual intercourse occurred at least once during the described time period, that Dinkel was aware of what was happening, and that K.H. was under 14 years old. Even if the jury believed Dinkel's defenses, the instructions offered no avenue for the jury to find she was not guilty. Thus, regardless of how aggressively or completely [defense counsel] presented Dinkel's claims, without any argument or instruction on the State's burden to prove that Dinkel's acts had to be voluntary, her claims were legally irrelevant.

. . . .

[Defense counsel's] assertions did not provide the legal link between Dinkel's claims and possible acquittal that Dinkel asserted. In fact, we question how [defense counsel's] argument did anything but inject confusion into the jury's decision-making. When reading the instructions, the trial judge told the jury that its "verdict must be founded entirely upon the evidence admitted and the law as given in these instructions." As we have noted, nothing in those instructions allowed the jury to find Dinkel not guilty if it believed her version of events. So a statement telling the jury that it did not have to find Dinkel guilty because that "didn't make sense" was bound to muddy up the deliberative waters.

It appears [defense counsel] did not know the voluntary act requirement existed or, if he did, he overlooked it. But this does not excuse his missteps. In State v. Davis, this court held that counsel's performance had been deficient when "he was unaware of the proper legal standard for a defense of mental disease or defect" and, consequently, "did not adequately prepare for trial." 277 Kan. 309, 327, 85 P.3d 1164 (2004). Similarly, here, [defense counsel] neglected the voluntary act requirement and, consequently, forged ahead with a defense that held no legal significance.

The KSC went on to hold that the deficient performance prejudiced Ms. Dinkel's defense:

The failure to give the jury the tools it needed to apply Dinkel's defense against the State's case made it impossible to achieve the fundamental fairness we expect in a criminal trial. The instructions told the jury the State had to prove Dinkel knowingly engaged—meaning she was aware of her conduct—in sexual intercourse with K.H. between November and March while K.H. was less than 14 years old. Dinkel admitted to at least one instance of sexual intercourse with K.H. during this time. She also testified that K.H. forcibly raped her during their first sexual encounter while she just "lied there" and presented evidence to support this claim. But no instruction told the jury that Dinkel was not guilty if she was forcibly raped. Because we generally presume juries follow instructions, State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011), the absence of an instruction permitting the jury to apply Dinkel's defense was prejudicial. Without it, Dinkel's testimony secured her conviction for at least one of the charges. 

As a result, the KSC reversed and remanded for a new trial.

[Update: according to this Hays Post article, on remand, Ms. Dinkel entered into a no contest plea to contributing to a child's misconduct, with a maximum sentence of 23 months in prison].

Potential for incorrect criminal history requires remand

Peter Maharry won in State v. Aschenbrenner, No. 123,385 (Kan. App. October 1, 2021) (unpublished), obtaining a remand with directions in a Thomas County burglary prosecution. Mr. Aschenbrenner argued that his original 2020 sentences were illegal because his criminal history score of C included a prior juvenile adjudication of criminal threat, and the PSI did not reflect whether the adjudication was based on the intentional or reckless version of the offense. The state argued Mr. Aschenbrenner’s illegal sentencing claim was barred because he agreed to his criminal history score on the record at sentencing. 

The COA disagreed with the state holding that Mr. Aschenbrenner’s stipulation to does not prevent the it from reaching the claim on appeal. Addressing the merits of the claim, the COA determined:

If the adjudication is not included in Aschenbrenner’s criminal history, then his criminal history score would be F . . . Thus, if Aschenbrenner committed the reckless version of criminal threat, then his sentence for each burglary conviction does not conform to the applicable statutory provision and is, in fact, illegal.

The COA declined to vacate Mr. Aschenbrenner’s sentences because the PSI did not establish which version of criminal threat was committed in the prior juvenile adjudication. Instead, the COA remanded with directions to the district court to determine whether the prior juvenile adjudication was based on the intentional or reckless version of criminal threat. The COA further directed the district court to vacate Mr. Aschenbrenner’s sentences and resentence him using the correct criminal history score if the state is unable to show that the juvenile adjudication was based on the intentional version of the offense.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]

District court must inquire into conflict claims underlying plea withdrawal request

Jacob Nowak won in State v. Ramsey, No. 123,239 (Kan. App. October 1, 2021) (unpublished), obtaining reversal and remand with directions from summary dismissal of a plea withdrawal motion in a Sedgwick County robbery prosecution . Mr. Ramsey argued that the district court was required to appoint him counsel and hold an evidentiary hearing for two reasons: (1) he received ineffective assistance from counsel who was unprepared to go to trial, forcing Ramsey to accept a plea; and (2) he was denied his right to conflict-free counsel.

The COA noted that if the district court fails to fully investigate the basis for the claim and the necessary facts justify appointing new counsel, then the district court abuses its discretion. The COA reviewed the record and determined:

Because the district court did not inquire further about these concerns, it abused its discretion as a matter of law by failing to ensure Ramsey was represented by competent, conflict-free counsel.

The COA reversed the district court’s summary dismissal of Mr. Ramsey’s plea withdrawal motion and remanded for an evidentiary hearing on Mr. Ramsey’s plea withdrawal motion.

Victim request for leniency can be part of departure analysis

Peter Maharry and Patrick H. Dunn won in State v. Bliss, No. 120,134 (Kan. App. September 24, 2021), obtaining reversal of one count in a multi-count Sedgwick County domestic violence prosecution. The state charged Mr. Bliss with two alternative counts of aggravated kidnapping. The jury returned a guilty verdict for both counts. Then the district court entered judgments of conviction on both counts as independent charges and imposed concurrent sentences of 84 months’ imprisonment with the sentence on one count held in abeyance.

On appeal, Mr. Bliss argued the state presented insufficient evidence to convict him on the first count of aggravated kidnapping. The state conceded the evidence was insufficient to support that conviction. However, the COA considered an "additional and fundamental error" with that conviction: “Because Bliss was charged with the two counts of aggravated kidnapping in the alternative, he could not be convicted and sentenced on both charges.”

The COA cited State v. Vargas, 313 Kan. 866, 867, 492 P.3d 412 (2021) noting that when jury verdicts are returned and entered for both alternative charges, the verdicts are merged as a matter of law resulting in only one conviction and sentence. The COA resolved both Mr. Bliss’s challenge to the sufficiency of the evidence in the first count and the conviction’s fundamental error:

We thus remand this case to the district court with directions to enter an amended journal entry correctly reflecting that Bliss’ conviction on Count 4 has merged into his conviction for aggravated kidnapping and a single 84-month sentence, effectively reversing one of his convictions for that offense and vacating one of his sentences.

The state had also appealed a durational departure granted in this case. The presumptive sentencing range was 203 to 226 months. The district court granted a durational departure to 84-months, relying on the victim's request for leniency and finding that Mr. Bliss did not have a history of committing violent crimes. The COA affirmed:

The State attempts to sidestep these weighty considerations, arguing that—under the first step in our analysis—the district court erred as a matter of law when it 42 considered M.B.'s request for leniency as a potential reason to depart. The State argues, based on the Kansas Supreme Court's decision in Hines, that a victim's request for leniency should never serve as a substantial or compelling reason to depart from a presumptive sentence in a case involving domestic violence. We do not read Hines so broadly.

. . . .

The State also asserts that the absence of violent criminal convictions can never justify a departure because a defendant's criminal history score already accounts for prior convictions. It is true that a district court may not justify a departure solely based on a criminal history score or factors the Sentencing Guidelines already have taken into account, such as "the difference in character between a defendant's past offenses and the present offense." But a court may consider a defendant's lack of violent history, in conjunction with other potentially mitigating factors, to determine whether the reasons given "'when considered as a whole, constitute substantial and compelling circumstances justifying departure.'"

Because the COA held that the district court's bases for departure were proper, it affirmed the durational departure.

[Update: the KSC denied both the state's and Mr. Bliss' petitions for review on February 1, 2022 and the mandate issued on May 5, 2022].

District Court not barred from considering on remand new video evidence that substantially impacts motion to suppress

Randall Hodgkinson won in State v. Thompson, No. 122,959 (Kan. App. Sept. 10, 2021)(unpublished), obtaining reversal and remand in a Reno county drug possession prosecution on a suppression issue. The case arose when a deputy pulled Mr. Thompson over for allegedly failing to yield to the deputy’s emergency-lighted vehicle. A search after that stop discovered drugs. At the district court, Mr. Thompson filed a motion to suppress asserting the deputy’s emergency lights were not on when he passed the vehicle, meaning the officer did not have cause for the traffic stop. Mr. Thompson testified that when he passed the deputy’s vehicle he had not emergency lights on. The deputy testified, however, that he had his rear emergency lights on after finishing another traffic stop. While camera footage from the front of his vehicle showed no visible flashes of red and blue lights, despite it being pitch black outside that night, the officer said the lights were not visible from the front.

The district court initially ordered suppression, but the State filed an interlocutory appeal. A panel of the Court of Appeals then reversed, saying the district court’s written order still stated that deputy’s rear lights were on, and the deputy’s testimony supported that finding, justifying the stop. The panel in that appeal rejected Mr. Thompson’s argument that the district court had, in fact, found Mr. Thompson’s testimony that the emergency lights were off more credible than the deputy’s testimony. On remand, Mr. Thompson renewed his suppression issue after discovering at the bench trial that a camera from the deputy’s vehicle contained a 360-degree view which showed the emergency lights were off, but the district court found it could not consider that evidence based on the mandate from the first appeal. Mr. Thompson was convicted of drug crimes following the bench trial.

On the second appeal, a second COA panel held the district court was not barred considering the suppression issue based upon the new evidence. The panel first noted that the district court incorrectly viewed the previous appellate mandate as restricting its ability to consider the new evidence. In particular, the mandate from the first case, which reversed the district court's order of suppression and remanded the case for further proceedings, did not prevent the district court from considering the issue anew given the new evidence presented. The panel further rejected the State’s argument that res judicata barred reconsideration of the issue, as the doctrine does not apply to proceedings following remand from a prior appeal. Likewise, law of the case did not preclude consideration of the issue because it arose upon new evidence developed upon remand. Finally, the panel rejected the argument that K.S.A. 22-3216 required Mr. Thompson file a second motion to suppress, noting that Mr. Thompson’s arguments were the same as in his original motion, and a court may re-entertain a motion to suppress based upon new evidence produced at trial. The panel, thus, reversed and remanded the case with direction for the district court to consider Mr. Thompson’s renewed motion to suppress in light of the new camera footage.

Failure to adequately investigate and present available defense challenging State’s central theory of case is ineffective assistance of counsel requiring new trial [PR GRANTED]

 William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall, Quentin M. Templeton, and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L. Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC, of Lawrence, Kansas won in State v. Buchhorn, No. 122,252 (Kan. App. August 13, 2021) obtaining a new trial in a Douglas County second-degree murder prosecution.

The case involved the death of a nine-month old child. Ms. Buchhorn worked at the daycare where the child died. She was the last person who admitted to having contact with the child, but consistently denied harming the child. The State charged Ms. Buchhorn with first-degree murder.

The State’s theory of prosecution at trial relied on then Douglas County Coroner Erik Mitchell, who performed the autopsy:

Dr. Mitchell's autopsy revealed that O.O. had suffered a significant skull fracture but no brain swelling. Dr. Mitchell deduced that O.O. died instantly following a blow to the head, which he claimed released mechanical energy into the base of the brain causing ‘temporary cessation of function at the base of the brain’ or ‘depolarization of neurons.’ He suspected that O.O. was stepped on.

At trial, Buchhorn’s counsel presented testimony from forensic pathologist Dr. Carl Wigren that the skull fracture showed signs of healing, meaning the injury was a few days to a week old, and the cause of death was unknown. The defense did not directly address Dr. Mitchell’s “depolarization theory”. Ms. Buchhorn was convicted of the lesser-included offense of reckless second-degree murder.

Following the verdict, Ms. Buchhorn obtained new counsel who moved for a new trial arguing, inter alia, that her previous counsel provided ineffective assistance of counsel by failing to adequately investigate and challenge Dr. Mitchell’s dubious forensic testimony. To support those claims, the defense presented new medical expert testimony, including Dr. Sudha Kessler, a pediatric neurologist who had extensive experience treating pediatric brain injuries, who explained the “depolarization theory” was unreliable:

[Dr. Mitchell's theory is] just fantastical, because it's not something I have ever been taught, not something I teach, not something—just not consistent. It's not consistent with the medical literature because there is no literature on magical disruption of the brain that causes death and that doesn't exist. In addition to looking though my own textbooks, looking through the two database searches I did, I was so taken aback by all this that I ... [asked] my colleagues if they have heard of this idea; and honestly, most of the time, the response that I got was laughter.

The defense further presented testimony from Alice Craig, a professor at the University of Kansas School of Law and attorney at the Paul E. Wilson Project for Innocence & Post-Conviction Remedies, who opined that given Dr. Mitchell’s testimony on the “depolarization theory” at the preliminary hearing raised questions on its validity, reasonable counsel would have investigated the basis for the theory, recognized it was dubious, and challenged it directly. The district court denied the motion for new trial, noting Ms. Buchhorn’s trial counsel had considerable experience, and had prepared what was potentially a winning strategy at trial.

The COA reversed the district court, holding, under the Strickland v. Washington standard, that Ms. Buchhorn’s trial counsel ineffective and prejudiced her right to a fair trial in these circumstances. The failure to investigate the “depolarization theory” was objectively unreasonable given that it was clearly established as central to the State’s case prior to trial, and minimal investigation would have established its dubious nature. Therefore, the defense utilized by counsel at trial was not a strategic decision, but one based on a failure to investigate other available defenses. The COA explained:

The trial court erred in finding it was reasonable for Buchhorn's counsel to rely upon Dr. Wigren to define the medical issues they needed to address. The ultimate control of a case rests with the lawyers and not the expert witnesses. It is incumbent upon the lawyers to define clearly for the experts the scope of their assigned tasks. Here, the communication channel broke down. The lawyers expected Dr. Wigren to tell them everything they needed to know about O.O.'s death and Dr. Mitchell's theory on causation. Dr. Wigren, however, apparently understood his engagement far more narrowly and offered an expert opinion on the skull fracture and possible causes of death rather than a critique of Dr. Mitchell's theory.

The COA further explained that while the decision to hire Dr. Wigren may have been reasonable to contest the timing of the skull fracture, the failure to reasonably investigate, and to present expert testimony challenging the State’s dubious central theory of the case was not. The COA further found Ms. Buchhorn’s defense was prejudiced by these failures given that the lack of any physical evidence tying her to the death meant the case hinged on the credibility of Dr. Mitchell’s “depolarization theory”, and evidence could have been presented establishing its dubious nature.  

[Update: the state filed a petition for review on September 7, 2021.]

[Further update: the KSC granted the state's PR on November 24, 2021.]

Failure to give jury instruction on non-exclusive possession of a vehicle requires new trial.

 Randall Hodgkinson and Washburn student intern (now Wichita PD) Daniel Beall-Hall won in State v. Douglas, No. 122,583 (Kan. App. Aug. 6, 2021)(unpublished), obtaining a new trial in a Reno County prosecution for possession of methamphetamine and possession of drug paraphernalia. The case arose in 2017 when a deputy stopped Mr. Douglas for speeding. Mr. Douglas was driving a truck that belonged to a contractor he worked for, which four or five other employees also regularly drove. While searching the truck the deputy found a clear pill containing methamphetamine as well as a spoon and syringe. The deputy would testify at trial that he saw the pill fall from Mr. Douglas’ pocket, while Mr. Douglas would testify that there was no pill in his pocket at all. Consistent with his defense that the pill and paraphernalia belonged to one of the other users of the truck, Mr. Douglas requested a jury instruction on non-exclusive possession of the vehicle (See PIK Crim. 4th 57.040), which the district court denied. The COA found the failure to give the instruction was erroneous:

A criminal defendant generally is entitled to an instruction on the law applicable to his or her theory of defense if the instruction would be both legally and factually appropriate. State v. Dupree, 304 Kan. 377, 397, 373 P.3d 811 (2016). Douglas' sole defense at trial was that the methamphetamine and drug paraphernalia found in the truck must have belonged to another person with access to the truck. Based on the record before us, Douglas' requested instruction on nonexclusive possession was legally and factually appropriate and the district court erred by failing to give the instruction.

In finding the error required a new trial, the COA emphasized the factual dispute over where the pill was located:

Douglas' entire defense at trial was that the methamphetamine and drug paraphernalia found in the truck must have belonged to another person with access to the truck, and there was evidence at trial that supported this defense. Douglas had a right to receive his requested jury instruction on nonexclusive possession of the vehicle, and we conclude the State has failed to meet its burden of showing that the instructional error was harmless.

[Update: the state did not file a PR and the mandate issue on September 15, 2021.]

No evidence of provocation to support attempted manslaughter conviction

Peter Maharry won in State v. Boldridge, No. 121,942 (Kan. App. August 13, 2021)(unpublished), obtaining reversal in a Atchison County attempted voluntary manslaughter prosecution. The prosecution stemmed from an Atchison police officer's investigation of potential theft of services and the resultant exchange of gunfire between between Mr. Boldridge and the officer.  In particular, Mr. Boldridge argued that there was no evidence in the record to support a finding of provocation  required for the form of attempted voluntary manslaughter as the jury was instructed. Mr. Boldridge argued that he could not have been acting with legally sufficient provocation because he was reacting to an attempt to make an arrest, which cannot be lawfully resisted, even if the arrest itself is unlawful. The COA reluctantly agreed:

We find Boldridge's argument is correct even if the result it mandates feels wrong. Generally, the existence of legally sufficient provocation would make Boldridge's actions less culpable, i.e., the jury could convict him of attempted voluntary manslaughter as opposed to attempted second-degree murder. But, the jury had the option to convict Boldridge of attempted second-degree murder and declined to do so. Its verdict, therefore, stands or fails based on the sufficiency of the evidence for attempted voluntary manslaughter. Our role is to resolve issues of law, not questions of fact or matters of equity. Here, an essential element of the offense—legally sufficient provocation—is lacking.

The COA rejected the state's primary claim that Mr. Boldridge was barred from raising this issue because it was invited error. Recognizing that there is a difference between an instructional issue and a sufficiency issue, the COA reiterated that the state has to prove every element of the charged crime, regardless of the requested instructions. As a result, the COA reversed the attempted voluntary manslaughter conviction.

[Update: the state did not file a PR and the mandate issued on September 21, 2021.]

Clear error plus?

Michelle A. Davis won in State v. Tommy Jones, No. 119,764 (Kan. August 6, 2021), obtaining reversal of two counts in a Sedgwick County sexual exploitation of a child prosecution. The state had charged Mr. Jones in two counts with ""promot[ing] any performance that includes sexually explicit conduct by a child under eighteen (18) years of age . . . knowing the character and content of the performance." But the jury instructions only required the state to prove he "persuaded, induced, or enticed the child victim to engage in sexually explicit conduct 'with the intent to promote a performance.'"  Unsurprisingly, the state admitted that the instructions for these two counts were legally erroneous.

The real question on appeal was whether the error required reversal. Because the instructions were not objected to below, the COA held they were not clearly erroneous. And this is the interesting aspect of this case--the ongoing difficulty squaring clear error review with the constitutional harmless error test. The KSC recognized that omission of an essential element is a significant constitutional error, which normally would trigger application of the constitutional harmless error test.  But it went on to hold, in form at least, that because the error was not raised at the district court, the clear error test for instructional errors should apply. But it went on to find that the error was reversible in this case in terms that sound a lot like constitutional harmless error review: 

The overlap of "sexy" with "sexually explicit conduct" is not so complete as to warrant our firm belief, on appellate review, that the error had little likelihood of changing the result at trial.

In its discussion of the proper reversal standard, the KSC cited State v. Daniels, 278 Kan. 53, 58-63, 91 P.3d 1147 (2004) as reviewing the omission of an element for clear error, but noting the need to evaluate harmlessness under the test set forth in Neder v. United States, 527 U.S. 1, 17  (1999). So it may be that for some significant constitutional instructional errors, although appellate courts are still called to conduct clear error review for reversal, it may be a slightly more robust species of clear error.

As an aside, the reversal of these two counts led to the reinstatement of two other counts that had been vacated by the COA as multiplicitous, so it is not clear if this decision will impact Mr. Jones' sentence that much. But keep it in mind when thinking about reversal standards for instructional issues involving constitutional error.

Insufficient evidence that offenses of conviction were sexually motivated

Meryl Carver-Allmond won in State v. Rinke, No. 122,413 (Kan. July 30, 2021), reversing the district court's finding that Mr. Rinke's crime was sexually motivated requiring him to register as a sex offender in a Johnson County murder prosecution. After pleading guilty to felony murder and aggravated kidnapping, when sentencing Mr. Rinke, the district court also made findings that the offenses were sexually motivated. On appeal, Mr. Rinke argued that any sexual acts were unrelated to the offenses of conviction. Reviewing the record for substantial competent evidence, the KSC found the record was insufficient to support the district court's finding:

The plain language of K.S.A. 2020 Supp. 22-4902(c)(18) defeats the State's other argument that crimes following sex need be intertwined only with the sex act to be considered crimes performed for sexual gratification. The statutory language does not say that an unlisted nonsex crime need only be temporally or otherwise intertwined with an act that led to sexual gratification. Instead, it requires that Rinke committed felony murder and kidnapping "for the purpose of the defendant's sexual gratification." K.S.A. 2020 Supp. 22-4902(c)(18). No evidence suggests Rinke murdered and kidnapped J.P. for the purpose of a sexual reward, so he would reach the state of being sexually gratified, or because those crimes gave him a source of sexual satisfaction or pleasure.

As a result, the KSC reversed the order for sex offender registration.

Self-Defense Dismissal Affirmed

Jess W. Hoeme, and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, won in State v. Betts, No. 122,268 (Kan. App. June 18, 2021) affirming Judge O’Connor’s finding that Mr. Betts was entitled to self-defense immunity in a Sedgwick County reckless aggravated battery prosecution. The prosecution stemmed from events where Mr. Betts - then a Wichita Police Officer - fired two shots at a lunging dog after entering a home during an investigation. Mr. Betts’ shots missed the dog, but fragments from one of the bullets ricocheted and hit a young girl in the eyebrow and toe. The state charged Mr. Betts with reckless aggravated battery.

The district court granted Mr. Betts’ pre-trial motion for self-defense immunity, holding that he met the standard for both a subjective and objectively reasonable belief that use of deadly force was justified. In affirming, the COA noted that the material facts were not in dispute, and that the state had waived any argument that the lunging dog was not unlawful force for purposes of the self-defense statutes. Following the opinion in State v. Bowers, 239 Kan. 417, 425, 721 P.2d 268 (1986), and noting testimony that the Wichita Police Department policy authorized use of force against animals and “it was not uncommon for an officer to use their weapon against a dog”, the COA recognized that attacking dogs can qualify as deadly force supporting a subjective and objectively reasonable use of deadly force under the self-defense statutes. The COA further rejected the State’s arguments that self-defense was unavailable for reckless crimes, noting that reckless behavior requires a person unjustifiably disregarded a danger, and self-defense acts as a justification. The COA clarified that the self-defense immunity statute can apply “regardless of whether the State has charged conduct that is intentional, knowing, or reckless.”

Looking into the limited data on police / dog interactions, it appears that the encounters are significantly more deadly for the dog than the officers. While there are no official national statistics, the Department of Justice published a report estimating that 20 - 30 dogs are killed by police each day in the U.S., or between 7,300 – 10,950 a year. The National Law Enforcement Memorial Fund does not include dog attack as the cause of death for any officer between 2010 and 2020, and their database of narrative descriptions of on-duty deaths comes up with no results when searching for “dog” or “canine” [However, searching for “horse” found over 50 deaths related to horse accidents going back to the 1700’s]. Nationally, there was an average of 29.1 dog bite relateddeaths per year between 2000 and 2015. In comparison, bee stings caused anaverage of 62 deaths per year between 2000 and 2017.

[Update: The State filed a petition for review on July 15, 2021.]

Governor grants clemency to 8

Here is a Kansas Reflector article reporting that Governor Kelly granted clemency to eight people last week. The article has some nice background on the recipients and also some historical information about clemency practice in Kansas.

As noted in the article, grants of clemency can be risky for politicians:

“There is some political risk in doing this,” the governor said. “Your opponent, given the opportunity, can and will use it against you if somebody you pardon does something wrong. So I think governors tend to weigh the political risk pretty heavily, because there is a downside.”

Still, she said, “we have to realize that we’re dealing with human beings here.”

As noted in the article, there has not been a lot of success in the pardon/commutation world in Kansas in recent decades. But this might be a sign that defenders should not forget about this option for clients with stories of procedural injustice that cannot be remedied by the court system. 

Wichita defense lawyer wins acquittal in international criminal tribunal

Kurt P. Kerns won an acquittal for his client, Dick Prudence Munyeshuli, in an international criminal tribunal in Arusha, Tanzania. As described in the judgment here, his client was charged with contempt for allegedly improperly revealing the identities of protected witnesses and having improper conduct with protected witnesses in a previous international criminal prosecution. The judge found that although Mr. Munyeshuli had some culpability, the prosecution had not proved its case:

The evidence presented by the Defence reflects that Mr. Munyeshuli’s Lead Counsel, Mr. Peter Robinson, instructed him to commit the violation at the heart of this charge. Mr. Munyeshuli deserves a warning for his conduct in these circumstances and not a criminal conviction. I am entering a finding of NOT GUILTY for Mr. Munyeshuli under Count 3 of the Nzabonimpa Indictment. 

Congratulations and great work, Kurt!

Failure to give requested involuntary manslaughter instruction requires new murder trial

Korey A. Kaul won in State v. Nunez, No. 121,284 (Kan. May 14, 2021), obtaining a new trial in a Sedgwick County first-degree murder prosecution. Although the KSC held that the district court had sufficient evidence to overcome Mr. Nunez' immunity claim, it went on to hold that the district court improperly refused to give a requested instruction for involuntary manslaughter as a lesser included offense. The district court gave instructions on lessers for second-degree intentional murder and voluntary manslaughter and on self-defense. But the district court refused to give Mr. Nunez' requested instruction for involuntary manslaughter-excessive force, holding that, because . The KSC applied its recent cases to hold that a defendant need not concede that a killing was reckless or unintentional to get an instruction on involuntary manslaughter-excessive force. The KSC went on to hold that the requested instruction was factually appropriate in this case:

Here, the evidence that Nunez possessed a reasonable and honest belief in the necessity of physical force to defend himself or his property, at least initially, was substantial. One testifying witness from the scene stated that Guzman had taken Nunez by the neck and was holding a blade to him, a blade that may have left the mark on Nunez' neck that was noted by law enforcement. Nunez repeatedly told law enforcement officers that Guzman had attacked him with a knife. Although it was not a kitchen knife, as described by Nunez, a boxcutter was found close to Guzman's body. And Nunez told the 911 dispatcher that it was a situation of either Nunez or Guzman surviving the attack. 

Finally, the KSC addressed whether the error in this case was harmless:

If the jury accepted parts of Nunez' theory of his defense that were supported by the evidence, it could conclude that Nunez was afraid for his life after being attacked by a knife-wielding assailant. Although a third party pulled Guzman off of Nunez, causing Guzman to fall down, in the short time that followed, Nunez might well have been afraid for his life, fearing that Guzman would stand back up and renew his attack, possibly using the nearby boxcutter. Nunez repeatedly told police that he saw Guzman reaching for a knife even while he was wounded and on the ground. The excessive force would consist of fatally shooting an assailant three times while the assailant was falling down or lying on the floor, but such a scenario is what imperfect self-defense is intended to address.

As a result, the KSC reversed and remanded for a new murder trial. 

Double rule applies when separate complaints are consolidated for trial

Reid T. Nelson and Debra J. Wilson won in State v. Dixon, No. 120,587 (Kan. App. May 14, 2021), obtaining a new sentencing hearing in a Sedgwick County prosecution for aggravated kidnapping, rape, and other charges stemming from two consolidated cases. The COA affirmed Mr. Dixon's convictions, but took issue with the sentencing procedure. In this case, two separate cases, each involving multiple charges, were consolidated for trial. At sentencing, the district court set a base sentence of 653 months in the first complaint and additional consecutive sentences from that charging document for a total of 1,157 months. The district court also set a base sentence of 653 months in the second complaint and additional consecutive sentences from that charging document for a total of 888 months. The district court ran the sentences from the two cases consecutively for a total controlling sentence of 2,045 months.

Under K.S.A. 21-6819(b)(4), the "total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence." This is sometimes know as the "double rule." By its terms, it only applies to multiple convictions arising from a single complaint. Even where cases are consolidated for trial, the statute would purport to result in two base sentences and two applications of the double rule.

Mr. Dixon challenged this construction of the statute as unconstitutional under the Equal Protection Clause and the COA agreed:

Dixon's argument that the double rule distinguishes between "arguably indistinguishable" classes has merit. Essentially, both classes of defendants Dixon identifies proceed to one trial on multiple charges that "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." But only defendants who have all the crimes brought in one charging document can benefit from applying the double rule to all the convictions together. Defendants who have crimes filed in separate charging documents consolidated for trial cannot benefit from applying the double rule to all the convictions together. The only difference between these two classes of defendants is whether there is one case number or two. 

We find that the double rule treats arguably indistinguishable classes of defendants differently. 

The COA next considered whether such disparity could stand in light of the low "rational basis" test for Equal Protection challenges. The COA noted that, if Mr. Dixon could benefit from the double rule on his entire sentence, his maximum sentence would have been 1,306 months. Instead, because he was charged in two complaints instead of one, he received a sentence of 2,045 months. 

We are mindful that the rational basis test is a very lenient standard and a statute must be enforced as written "if any state of facts reasonably may be conceived to justify it." But we are unable to find that the strict application of K.S.A. 2020 Supp. 21-6819(b)(4) to Dixon's cases implicates any legitimate sentencing goal. As a result, we find that the statute, as applied to Dixon's cases, does not pass rational basis scrutiny. Thus, we conclude that the double rule found in K.S.A. 2020 Supp. 21- 6819(b)(4), as applied to Dixon's cases, violates his equal protection rights under the Fourteenth Amendment.

The COA went on to hold that the proper remedy was to extend the protection of the double rule to all of Mr. Dixon's sentences.

[Update: Mr. Dixon filed a petition for review from the affirmance of his convictions on June 4, 2021.]

[Further update: the state filed a cross-petition for review on July 1, 2021.]

[Further update: the KSC denied both the state and Mr. Dixon's PRs on September 27, 2021.]

Appellate court should not make criminal history findings

Michelle A. Davis won in State v. Rankin, No. 122,818 (Kan. App. April 30, 2021), obtaining a remand for determination of whether a prior crime was a person felony. On appeal, Mr. Rankin sought to challenge a prior juvenile adjudication used in his criminal history calculation score under Boettger. In response, the state sought to prove that the prior adjudication was for intentional criminal threat asking the appellate court to take judicial notice of the complaint from the juvenile case. The COA acknowledged that it could take judicial notice of the district court document, but still held that it should not make a criminal history finding on appeal:

Here, the State is asking this court to make factual findings beyond what is necessary to resolve a mootness issue. Although this court can take judicial notice of the original complaint . . .  we observe that this evidence alone does not necessarily resolve whether Rankin's juvenile adjudication for terroristic threat was based on the intentional or reckless version of the statute; the original complaint may have been amended later in the proceedings. Rankin should receive a full hearing in district court to resolve the issue. At such a hearing the district court should consider all available records in [the juvenile case] including the original and any amended charging documents, any plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and the journal entry of adjudication.

Credibility determinations require giving self-defense instruction

Michelle A. Davis won in State v. Holley, No. 121,181 (Kan. April 23, 2021), obtaining a new trial in a Sedgwick County first-degree murder and child endangerment prosecution. At trial, Mr. Holley requested a self-defense instruction, but the district court refused because it found that Mr. Holley was committing a forcible felony. The state had conceded that the instruction should have been given, but asserted that the failure to do so was harmless. The KSC agreed that the instruction was legally appropriate under its more recent case law and that it was factually appropriate. But it disagreed that with the state that the error was harmless:

The jury was provided with competing narratives. According to Reed, Holley tried to rob Smith at gunpoint and fired the initial shot. But according to Holley, Smith tried to rob Holley by grabbing his $200-$300 cash and fired the initial shot, followed by an attempted shot that was only prevented by Smith's gun jamming. 

The physical evidence supported Holley's claim that both Smith and Holley fired or tried to fire shots. Smith's Jimenez pistol was jammed and a live Hornady .380 auto caliber cartridge was stuck inside the barrel. Holley admits to shooting Smith and ballistic testing showed the Smith & Wesson Bodyguard Holley possessed at the time of his arrest matched the projectile recovered from Smith's autopsy. 

The physical evidence, however, does not establish who fired or tried to fire their gun first. The sequence of events hinges on testimony from Reed and Holley. Thus, whether Holley used self-defense boils down to a credibility question. Without the jury making this credibility determination, we cannot be sure that the court's failure to instruct the jury on self-defense did not affect the outcome of this trial. 

As a result, the KSC reversed the murder conviction and remanded for new trial. The KSC also affirmed the child endangerment conviction, holding that the state did not have to prove probability or likelihood of harm to prove child endangerment.

Misstatement of law and fact require new trial

Jennifer C. Roth won in State v. Watson, No. 118,710 (Kan. April 23, 2021), obtaining a new trial in a Wyandotte County Medicaid fraud prosecution. The charges stemmed from allegations that Mr. Watson submitted inaccurate time sheets as part of his employment with a home health-care agency. Mr. Watson admitted that the time sheets did not accurately reflect exact times of day worked, but asserted that the total time was accurate. After a jury convicted Mr. Watson, the district court ordered over $13,000 in restitution.

The COA had found one harmless prosecutorial error, but vacated the restitution order. The KSC found an additional prosecutorial error and held that the errors required reversal:

The prosecutor misstated the evidence by arguing Watson failed to provide any proof that he had worked the total hours recorded on his time sheets, an argument that disregarded Watson's own testimony. The prosecutor also misstated the law by arguing Watson was guilty of Medicaid fraud based solely on his submission of inaccurate timesheets, without regard to whether Watson had acted with intent to defraud. These errors substantially diminished, or effectively eliminated, an essential element of the crime of conviction—the defendant's intent to defraud Medicaid. Simultaneously, the errors undermined Watson's central defense to this charge—that he acted without intent to defraud.

The KSC clarified that proof of inaccurate time sheets only satisfied one element of the offense of Medicaid fraud, but not the culpable mental state requirement:

Under the plain language of this statute, proof that a defendant made false statements or misrepresentations to Medicaid satisfies only one element of Medicaid fraud. To secure a conviction, the State must also prove the defendant made such false statements or misrepresentations with the "intent to defraud." An "[i]ntent to defraud" means "an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property." K.S.A. 2019 Supp. 21-5111(o). As used in this definition, "deception" means "knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind." K.S.A. 2019 Supp. 21-5111(e).

The KSC concluded that the prosecutor's misstatement of fact and law went to the heart of Mr. Watson's defense (that he did not have intent to defraud), and therefore required a new trial.

Court's mistake leads to statutory speedy trial violation

Peter Maharry won in State v. Queen, No. 120,643 (Kan. March 19, 2021), reversing Douglas County second-degree murder, attempted second-degree murder, and attempted voluntary manslaughter convictions. During the prosecution, at one point the district court and the prosecutor incorrectly stated that the statutory speedy trial deadline was April 30 when in fact it was March 30. The district court faulted the defense attorney for failing to inform the Court of the mistake and also held that the crowded docket exception allowed the court to extend the speedy trial period.  The KSC rejected each rationale:

Likewise, here, the appellate record does not include an order entered during the 150-day statutory period that granted a continuance based on any of the reasons authorized in the speedy trial statute. Even so, the State argues the judge implicitly invoked the crowded docket exception. But the overall structure of the statute supports an interpretation that the exception applies only if the trial court enters an order deferring an initial setting to a future date. Each exception in K.S.A. 2020 Supp. 22-3402 requires overt action on the part of the district court and does not automatically spring into operation. 

For example, K.S.A. 2020 Supp. 22-3402(a) and (b) provide an exception when "the delay shall happen as a result of the application or fault of the defendant." Referring to that exception, K.S.A. 2020 Supp. 22-3402(c) says that in such cases, "the trial shall be rescheduled within 90 days of the original trial deadline." (Emphasis added.) Subsections (d), (e)(1), and (e)(2) contain similar provisions if a defendant's failure to appear or competency matters delay the trial. 

But subsections (e)(3), relating to the unavailability of material evidence, and (e)(4), relating to crowded dockets, are different. Rather than require the district court to reschedule the trial, the statutory language provides grounds under which the court may extend the trial time through "[n]ot more than one continuance." The use of the words "extended" and "continuance" in these exceptions is significant. It reveals an intent by the Legislature to require an overt act—the granting of a continuance—for the exceptions to apply. These exceptions do not automatically spring into operation simply because of the existence of the statutory factors. 

As a result, the KSC held that the crowded docket exception did not extend the time limit beyond 150 days. The KSC also held that the record did not support a finding of acquiescence: 

Here, Queen's counsel's statement that the proposed trial date "works for defense" was a passive response to the judge's inquiry into availability and does not rise to the level of acquiescence to a continuance beyond the speedy trial deadline or a waiver of the statutory speedy trial right. Under our caselaw, something more is required than this type of passive response. 

Even so, the district court judge held, and the State now contends, that defense counsel had a duty to speak up because Kansas Rule of Professional Conduct (KRPC) 3.3 (2020 Kan. S. Ct. R. 353), imposes on Kansas attorneys a duty of candor toward the court. KRPC 3.3 prohibits an attorney from knowingly misleading the court as to an incorrect statement of law or fact. We first observe that the record fails to establish that defense counsel knowingly misled the court. We also note the tension between the district court judge's expectations of counsel and both our caselaw and defense counsel's role in the adversarial process in a criminal case, tensions the Court of Appeals discusses. We refrain from that discussion because of the guidance in comment 20 to the prefatory scope of the KRPC. Comment 20 instructs that a violation of a KRPC does not create a presumption that a legal duty has been breached, does not necessarily warrant nondisciplinary remedies, should not be used as procedural weapons, and does not provide adversaries with standing to seek enforcement of the rules. In other words, nothing in the KRPC alters our longstanding caselaw that a criminal defendant has "no obligation to take affirmative action" to protect his or her speedy-trial right.

Because a passive response to the district court's inquiry was not acquiescence, it also did not excuse the speedy trial violation.

As a result, the KSC reversed and remanded with directions to dismiss the charges against Mr. Queen with prejudice.

[Update: this case was named the 2021 ADO case of the year!]

Stand-Your-Ground ruling supported by sufficient evidence

Patrick H. Dunn won in State v. Dukes, No. 121,790 (Kan. App. February 12, 2021), affirming Judge Mitchell's finding that Mr. Dukes was entitled to Stand-Your-Ground immunity in a Sedgwick County voluntary manslaughter prosecution. The prosecution stemmed from an altercation where the decedent had approached Mr. Dukes in his truck, ran back to his car after Mr. Dukes displayed a handgun, and retrieved his own handgun and headed back towards Mr. Dukes' truck. Mr. Duke shot at the decedent, resulting in the decedent's death. The district court held that Mr. Dukes met the standard for both a subjective and objectively reasonable belief that use of deadly force was justified. Under the appropriate standard of review, the COA affirmed:

In particular, the court found that Berryman had a semi-automatic weapon within reach (under him on the passenger seat) when he returned to his car. The district court found that this evidence and a reasonable inference therefrom—Berryman had purposefully retrieved the gun since Lawton was in the passenger seat when Berryman drove into the parking lot—combined with Dukes' testimony that he believed Berryman was retrieving a gun with the intent to shoot him and that Dukes saw Berryman with a gun when Dukes drove away, were sufficient to convince a reasonable person that Dukes acted with a reasonable belief that his life was in danger.

Having reviewed the transcript of the evidentiary hearing, we conclude there is evidence in the record that supports the district court's finding that Dukes "waffled"—i.e., vacillated or flip-flopped—in his account of whether Berryman had a gun when he first approached Dukes' truck. As the district court indicated, Dukes initially told the police that Berryman carried a gun when he came toward the truck, but at the hearing Dukes stated he thought he saw Berryman with a gun when Dukes was driving out of the parking lot. The State places too fine a point on the district court's use of the verb "waffled" (instead of using a word like "altered"), especially since the State did not correct the court when it used the same language in its initial denial of Dukes' request for immunity. Regardless, the district court's finding is supported by substantial competent evidence in the record.

 At its core, the State's argument is not so much a challenge to the sufficiency of the evidence supporting the district court's finding as it is an effort to undermine to the court's credibility assessments and weighing of Dukes' testimony against the State's assertions that Dukes, not Berryman, was the initial aggressor in the confrontation. In its brief, the State urges several reasons why the court should not have credited Dukes' account of the events. But it is not our role on appeal to second-guess credibility determinations. Instead, we must determine whether relevant and legal evidence in the record supports the district court's factual findings.

Because substantial evidence supported the district court's finding, the COA affirmed the dismissal.

[Update: the state filed a PR on March 4, 2021.]

Proof by clear and convincing evidence is not proof beyond a reasonable doubt

Randall L. Hodgkinson won in State v. Baumgarner, No. 121,092 (Kan. App. January 22, 2021), reversing a Sumner County criminal possession of a firearm conviction. The state charged Mr. Baumgarner with possession of a firearm by a person "who is or has been . . . subject to involuntary commitment." The only evidence introduced by the state on the question of Mr. Baumgarner's status was an order from a previous commitment hearing finding, by clear and convincing evidence, that Mr. Baumgarner was such a person. The COA first held that the statute requires proof of actual status, not merely a previous adjudication: 

the State's position cannot be easily reconciled with the governing statutory language in several respects. We, therefore, reject a construction of the statute making adjudication under the Care and Treatment Act either a necessary or a sufficient condition to convict for criminal use of a weapon. The exercise also demonstrates why Baumgarner's take is truer to the statutory language.

The COA then held that the evidence in this case, proof by clear and convincing evidence, was insufficient to support a conviction beyond a reasonable doubt:

the only evidence the State presented bearing on Baumgarner's mental status was a certified copy of the order of adjudication entered in 2015. And that order included a finding by clear and convincing evidence that Baumgarner had a mental illness permitting his involuntary commitment. Under Kansas law, clear and convincing evidence is a degree of proof greater than a preponderance and less than beyond a reasonable doubt. If proved by clear and convincing evidence, a fact has been established to be "highly probable." Not to belabor the point, a "highly probable" fact has not been proved beyond a reasonable doubt.

 Accordingly, without some additional evidence, the finding in the 2015 order adjudicating Baumgarner could not and did not prove his mental status beyond a reasonable doubt. Jurors properly instructed on the differing burdens of proof could not conclude otherwise. It is no rejoinder to say that the order was some circumstantial evidence that Baumgarner may have been mentally ill beyond a reasonable doubt. In the absence of other evidence, such an inference would be no more than unsupported speculation or conjecture—a vaporous notion insufficient to support a criminal conviction.

As a result, the COA reversed the conviction and sentence.

[Update: the state filed a PR on March 1, 2021.]

Split verdict on identical counts impedes appellate review requiring new trial

Korey A. Kaul won in State v. Coble, No. 118,382 (Kan. January 15, 2021), reversing a count of aggravated arson and remanding for further proceedings in a Reno County prosecution. The state had charged Mr. Coble with three identical counts of aggravated arson. The jury acquitted of two counts and convicted of one. The problem in the case was there was no way to know which actual alleged incident the jury relied on to convict. Mr. Coble had been conducting chemistry experiments in his apartment, which had led to three different incidents of the fire department being called. The jury instructions for the three counts were identical except for the count number. During deliberations, the jury asked "Do the three counts apply to specific locations or events and if they do, which ones belong to which counts?" The district court merely referred the jurors back to the instructions given. 

On appeal, Mr. Coble argued that the failure to connect any count to a specific incident resulted in a hopelessly ambiguous verdict and made it impossible to conduct a sufficiency analysis. The state first argued that Mr. Coble invited any error because he had objected to the state's suggestion that the district court respond to the jury's question with a unanimity instruction. The KSC held that it did not matter because he state's proposed solution would not have cured the ambiguity problem.  The KSC also rejected the COA's rationale that the sequencing of counts in the instructions and verdict form in some way clarified which count was associated with which incident. Finally, on the merits, the KSC agreed that the resulting ambiguity interfered with Mr. Coble's right to have the appellate court review for sufficient evidence:

We hold the panel's conclusion about the jury's understanding of the sequencing of the counts in the instructions and verdict form is unsupported on this record. We cannot discern the jury's intent, as we have in other circumstances. Given this, what alternatives are left?

In a criminal case, when a defendant challenges the evidence's sufficiency to support a conviction, an appellate court examines the evidence in the light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do that because our task is "to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt," not whether we "believe[ ] that the evidence . . . established guilt beyond a reasonable doubt."  

. . . .

But this is a function we cannot perform on this record. And we are sufficiently troubled by the uncertain circumstances of Coble's conviction and acquittals that we must reverse the conviction and remand the case for additional proceedings. The underlying premise of Coble's argument is that the manner in which the district court explained the charges to the jury was fatally infirm because the court cannot say with any degree of certainty which act the jury found constituted aggravated arson. And on these facts, we agree. Admittedly, the exact nature of the error defies ready classification, but we cannot tell what conduct constituted the crime of conviction among the choices facing the jury and given their acquittal on two counts.

Because the appellate record impeded effective review, the KSC held the appropriate remedy was to reverse and remand for a new trial. The KSC acknowledged that this remedy may engender its own Double Jeopardy concerns, but left that for another day. 

Failure to instruct on correct section of arson statute requires reversal

Rick Kittel and KU law student, Michael Raven, won in State v. Watt, No. 121,266 (Kan. App. December 18, 2020)(unpublished) reversing a Riley County conviction for arson. Mr. Watt was charged with arson under K.S.A. 2018 Supp. 21-5812(a)(1)(A) for burning down the family home without the permission of another person who had an interest in the home. Prior to trial and during evidence taking at trial, the state’s narrative was that Mr. Watt’s estranged wife was the person who had an interest in the home. But at the instructions conference, the state asked that the jury be instructed that Planet Home Lending, the mortgage holder on the property, was the person who had an interest in the home. Over defense counsel’s objection, the district court granted the state’s request. The jury found Mr. Watt guilty of arson based on an instruction asking it to find that Planet Home Lending was the person with an interest in the home.

On appeal, Mr. Watt argued that the evidence produced at trial was insufficient to sustain his conviction. This argument was based upon State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986), which held that a financial institution is a lienholder but cannot be the person with and “interest” in the mortgaged property.

Finding Houck to be the controlling law, the Court of Appeals reversed  the conviction. Although noting that Mr. Watt could have been properly convicted of arson under a different subsection of the arson statute proscribing the burning of a dwelling in which an insurer or lienholder has an interest, the Court of Appeals found the evidence insufficient to prove arson under the subsection actually charged and instructed upon:

Based on the trial evidence taken in the best light for the State, the only interest Planet Home had in the Watts’ residence was that of a mortgage holder. What the State proved was insufficient to support the jury verdict premised on criminal conduct violating K.S.A. 2018 Supp. 21-5812(a)(1)(A).

Moreover, the factual inappropriateness of the instruction cannot negate the insufficiency of the evidence to convict. That’s because the lack of evidence demonstrating that Planet Home had interest in the home covered under K.S.A. 2018 Supp. 21-5812(a)(1)(A) is precisely why the instruction was not factually appropriate. The same deficiency, therefore, caused two distinct defects – one was an instructional error, and the other was a lack of evidence of an element of the crime submitted for the jury’s consideration. On appeal, the State does not have the option to elect for which of those defects it should be held to account. The State bears responsibility for both of them, and Watt gets the benefit of the more favorable remedy.

[Update: the state did not file a PR and the mandate issued on January 27, 2021].