Volume 310, No. 3 Opinions Filed in October-December 2019

REPORTS

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER:

SARA R. STRATTON

Advance Sheets, Volume 310, No. 3 Opinions filed in October-December 2019

"Advance Sheets of the Kansas Supreme Court and Kansas Court of Appeals" (USPS 007-480) are published every month except February, June, August, and October by the State of Kansas, Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612- 1598. Periodical postage paid at Topeka, Kansas. POSTMASTER: Send address changes to "Advance Sheets of the Kansas Supreme Court and Kansas Court of Appeals," State Law Librarian, Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612-1598.

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Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUSTICES AND OFFICERS OF THE KANSAS SUPREME COURT

_____

CHIEF JUSTICE:

1 HON. LAWTON R. NUSS ...... Salina

JUSTICES:

2 HON. MARLA J. LUCKERT ...... Topeka HON. CAROL A. BEIER ...... Wichita HON. ERIC S. ROSEN ...... Topeka 3 HON. LEE A. JOHNSON ...... Caldwell HON. DAN BILES ...... Shawnee HON. CALEB STEGALL ...... Lawrence 1 Chief Nuss retired December 17, 2019. 2 Justice Luckert sworn in as Chief Justice December 17, 2019. 3 Justice Johnson retired September 6, 2019.

OFFICERS: Reporter of Decisions………….……….……SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator ...... NANCY DIXON Disciplinary Administrator ...... STANTON A. HAZLETT

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IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

RULES RELATING TO REQUIRED CONTINUING JUDICIAL EDUCATION

Supreme Court Rule 503 is hereby amended, effective the date of this order.

Rule 503

JUDICIAL EDUCATION ADVISORY COMMITTEE

(a) Purpose. A Judicial Education Advisory Committee is established to recommend and organize education and training programs for Kansas appellate judges, district judges, and district magistrate judges. Programs will be designed to accomplish the following goals:

(1) to educate judges regarding the knowledge, skills, and tech- niques required to perform judicial responsibilities fairly, correctly, and efficiently; and

(2) to improve the administration of justice, reduce court delay, and promote fair and efficient management of all court proceedings.

(b) Membership. The Committee is composed of:

(1) one representative of the appellate judges;

(2) up to ten representatives of the district judges and district magistrate judges with the goal of maximizing balance among each of the six judicial departments and among district judges and district magistrate judges;

(3) and one nonvoting representative of the Office of Judicial Administration.

(d) Terms.

(1) The term of each member of the Committee will be three years. No member of the Committee will be eligible to serve more than two consecutive terms, with the exception that a member appointed to complete an unexpired term will be eligible to serve

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two more consecutive three-year terms. A member may serve additional terms after a break in service.

(2) Notwithstanding the limitation on the number of representatives in subsection (b)(2), all representatives of the district judges and magistrate judges as of July 1, 2019, will remain on the Committee until their terms expire.

(e) OJA Representative and Liaison Justice.

(1) In addition to the membership described in subsection (b):

(A) there will be a permanent, nonvoting seat on the Committee for a representative of the Office of Ju- dicial Administration and

(B) the chief justice of the Supreme Court will designate a liaison justice who will serve as the nonvoting chair of the Committee.

(2) A person serving on the Committee under this subsection is not subject to a term limit under subsection (d).

BY ORDER OF THE COURT this 26th day of November, 2019.

FOR THE COURT:

______LAWTON R. NUSS Chief Justice

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IN THE SUPREME COURT OF THE STATE OF KANSAS

ORDER

RULES RELATING TO JUDICIAL CONDUCT

Supreme Court Rules 640 is hereby amended, effective January 1, 2020.

Rule 640

JUDGES ASSISTANCE COMMITTEE

(a) The Committee. Under the authority granted by Article 3, Section 15, of the Constitution of the State of Kansas, and in the exercise of the inherent power of the Supreme Court, there is hereby created a A Judges Assistance Committee is created to provide assistance to any Kansas judge needing help for a mental or physical disability or an addiction to or excessive use of drugs or intoxicants who is experienc- ing mental health issues such as depression, stress, grief, and anxiety; addiction issues such as alcohol abuse, drug abuse, and gambling; age- related issues; or any other issue that may affect the judge's quality of life or ability to perform the judge's judicial duties.

(b) Definition of "Judge." For purposes of this rule, "judge" means any Supreme Court justice, Court of Appeals judge, district judge, district magistrate judge, Municipal Court judge, or any retired judge or justice accepting judicial assignments.

(b)(c) Membership. The Committee committee shall will consist of seven judges appointed by the Supreme Court and shall must always include at least two active district judges and two active district magistrate judges. The other three members may be active or retired judges. The court will consider population Population and geographical representation shall be considered in the appointment process.

(d) Terms. Each appointment Committee member shall is be appointed for a term of four years. The Supreme Court court will appoint a new member to fill a vacancy on the committee Committee occurring during a term. A new member appointed to fill a vacancy serves the unexpired term of the previous member. No member may serve more than three consecutive four-year terms, except that a member initially appointed to serve an unexpired term may serve three more consecutive four-year terms thereafter. A vacancy shall occur occurs when the qualifications for the appointment of any member are no longer met.

(c)(e) Chair and Meetings. The Supreme Court shall will designate one member as chair of the committee Committee. The Committee will

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meet when the need arises and when called by the chair, which shall meet when the need arises and as called by the chair.

(d)(f) Objectives. The purpose of the committee is to aid Kansas judges who are, or may potentially become, impaired in the performance of their duties by reason of alcohol or substance abuse or other physical or mental infirmity. The Committee's objectives of the committee are to:

1.(1) identify a judges judge who are impaired from responsibly performing their whose ability to perform the judge's duties by virtue of addiction or abuse of alcohol or other chemicals or due to senility, psychiatric disorders, or other reasons is affected by mental health issues such as depression, stress, grief, and anxiety; addiction issues such as alcohol abuse, drug abuse, and gambling; age-related issues; or any other issue that may affect the judge's quality of life or ability to perform the judge's judicial duties;

2.(2) arrange intervention in those identified cases in such a manner that the judges a judge involved will recognize their impairment issues that may affect the judge's quality of life or ability to perform the judge's judicial duties, accept help from the committee Committee and medical professionals, and be treated and monitored for a period of time so that they the judge may return to their performing judicial duties when able;

3.(3) recommend avenues of treatment and provide a program of peer support where possible; and

4.(4) act as an advocate of a judges judge who are ill and assist them the judge in recognizing issues that may affect the judge's quality of life or ability to perform the judge's judicial duties their impairment, in obtaining effective treatment when possible, and in returning to the responsible performance of their the judge's profession.;

5. educate the public and the legal community about the nature of impairments and develop a program which will generate confidence to warrant early referrals and self-referrals to the committee so that impairments may be avoided, limited, or reversed.

(g) Office of Judicial Administration. The Office of Judicial Admin- istration will assist the Committee in achieving its purpose and objectives by:

(1) helping judges and other persons contact the Committee;

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(2) educating the public and the legal community about the nature of issues that may affect the judge's quality of life or ability to perform the judge's judicial duties and developing a program that will generate confidence to warrant early referrals and self-referrals to the Committee so that such issues may be avoided, limited, or reversed;

(3) compiling and creating reports required by the Supreme Court; and

(4) providing any other assistance requested by the Supreme Court or the Committee.

(e)(h) Contact. Rather than asking the Office of Judicial Administration for assistance in contacting the committee, a A judge or anyone on the judge's behalf or any other person may communicate with the committee contact the Committee or one of its members directly. on his or her own behalf or any person may suggest the need to intervene on a judge's behalf. The judge's interaction with the committee, however, shall be voluntary. The Office of the Clerk of the Appellate Courts is authorized to assist judges and other persons wishing to contact the Judges Assistance Committee.

(f)(i) Designees. The committee Committee is authorized to may designate persons to assist the committee Committee in its work.

(g)(j) Immunity. The committee Committee members, Office of Judicial Administration staff assisting the Committee, designees, and all other participants shall be are entitled to the immunities of Rule 608 612 and shall be are relieved from the provisions of Rule 8.3 of the Kansas Rules of Professional Conduct, Rule 2.15(A) and (C) of the Kansas Code of Judicial Conduct, and Rule 207 as to work done for and information obtained in carrying out the Committee's work of the committee.

(h)(k) Confidentiality. All proceedings, information, meetings, reports, and records of the committee Committee or the Office of Judicial Admin- istration pertaining to individual judges shall be are privileged and must not be divulged in whole or in part except:

1.(1) when a the judge fails or refuses to address the issues of concern, the committee Committee, upon a vote of the majority, may refer the matter to the Commission on Judicial Qualifi- cations Conduct;

2.(2) when a judge has been referred to the committee Committee by the Commission on Judicial Qualifications Conduct, the

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committee Committee shall will provide progress reports and recommendations to the Commission;

(3) when the Committee, upon a vote of the majority, seeks the assistance of the Kansas Lawyers Assistance Program;

3.(4) when the judge consents to the release of information; or

4.(5) or by order of the Supreme Court.

(i)(l) Annual Report. Annually, and at such additional times as the Su- preme Court may order, the committee shall The Committee must file a an annual statistical report of its activities with the Supreme Court and the Commission on Judicial Qualifications Conduct. The court may order additional reports.

(j)(m) Internal Procedural Rules. The committee Committee may adopt rules of procedure consistent with this rule.

(k)(n) Expenses. Members and designees of the committee shall Committee will be reimbursed their actual and necessary expenses, including the use of professional intervention assistance, incurred in the discharge of their official duties. Any psychological, medical, or rehabilitative programs undertaken shall will not be the financial responsibility of the Judges Assistance Committee.

(l)(o) Cooperation. A judge's interaction with the Committee is voluntary. However, a A judge's cooperation, or failure to cooperate, with the committee Committee may be considered by the Commission on Judi- cial Qualifications Conduct and/or and the Supreme Court in any disciplinary proceeding.

(m) Definition of "Judge". For purposes of this rule “judge” shall mean any Supreme Court Justice, Court of Appeals Judge, District Judge, District Magistrate Judge, Municipal Court Judge, or any retired judge or justice accepting judicial assignments.

BY ORDER OF THE COURT this 31st day of December, 2019.

FOR THE COURT

______MARLA LUCKERT Chief Justice

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KANSAS SUPREME COURT Table of Cases 310 Kan. No. 3

PAGE

Corvias Military Living, LLC v. Ventamatic, Ltd...... 824 GFTLenexa, LLC v. City of Lenexa ...... 976 In re Delaney ...... 1001 In re Hawkins ...... 988 In re Shepard ...... 1017 Reardon v. King ...... 897 State v. Boettger...... 800 State v. Bryant ...... 920 State v. Carpenter ...... 945 State v. Chavez-Majors ...... 1048 State v. Claerhout...... 924 State v. Dean ...... 848 State v. Fox ...... 939 State v. Harris ...... 1026 State v. Johnson (No. 116,453) ...... 835 State v. Johnson (No. 113,228) ...... 909 State v. Owens ...... 865 State v. Pruitt ...... 952 Via Christi Hospitals Wichita v. Kan-Pak ...... 883 Williams v. C-U-Out Bail Bonds ...... 775

(X) PETITIONS FOR REVIEW OF DECISIONS OF THE COURT OF APPEALS 310 Kan. No. 3 DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Ackerman v. Kansas Dept. of Revenue ...... 118,128 Denied ...... 12/27/2019 Unpublished Altom v. Norwood ...... 120,742 Denied ...... 12/17/2019 Unpublished Blizzard Energy v. Alexandrov ...... 118,656 Denied ...... 12/19/2019 Unpublished Bradshaw v. Cline ...... 119,676 Denied ...... 11/25/2019 Unpublished Brumitt v. Kansas Dept. of Revenue ...... 113,416 Denied ...... 12/19/2019 Unpublished Cain v. State ...... 119,434 Denied ...... 12/18/2019 Unpublished Cameron v. Kansas Dept. of Revenue ...... 118,788 Denied ...... 12/27/2019 Unpublished Cassity-Hauck v. Hauck ...... 120,022 Denied ...... 12/19/2019 Unpublished Central Kansas Conservancy 56 Kan. App. 2d v. Sides ...... 119,605 Denied ...... 12/19/2019 1099 CitiMortgage, Inc. v. White ... 118,323 Denied ...... 12/19/2019 Unpublished City of Mission v. Furnish ..... 119,597 Denied ...... 11/25/2019 Unpublished Coleman v. State ...... 119,037 Denied ...... 12/18/2019 Unpublished Diaz v. State ...... 116,806 Denied ...... 12/06/2019 Unpublished Dull v. State ...... 118,825 Denied ...... 11/25/2019 Unpublished Eddy v. State ...... 119,365 Denied ...... 12/18/2019 Unpublished Fairfax Portfolio v. Carojoto .. 118,712 Granted...... 12/17/2019 Unpublished Fischer v. Kansas Dept. of 55 Kan. App. 2d Revenue ...... 112,243 Denied ...... 12/19/2019 225 Fuller v. State ...... 118,801 Denied ...... 12/13/2019 Unpublished Gaona v. State ...... 119,244 Denied ...... 12/13/2019 Unpublished Gholston v. State ...... 116,114 Denied ...... 11/05/2019 Unpublished Hudgins v. State...... 119,103 Denied ...... 12/18/2019 Unpublished In re A.F...... 120,400 Denied ...... 11/25/2019 Unpublished In re A.L...... 120,313 Denied ...... 11/25/2019 Unpublished In re A.W...... 120,373 Denied ...... 11/25/2019 Unpublished In re J.S...... 120,193 Denied ...... 11/25/2019 Unpublished Jacobs v. State ...... 118,642 Denied ...... 12/13/2019 Unpublished Jarvis v. Kansas Dept. of 56 Kan. App. 2d Revenue ...... 119,116 Granted...... 12/17/2019 1081 Kaelter v. Sokol ...... 119,333 Denied ...... 12/19/2019 Unpublished Little v. State ...... 119,167 Denied ...... 12/13/2019 Unpublished Love v. State ...... 118,823 Denied ...... 12/18/2019 Unpublished Luper v. Bd. of Trustees of Police & Fire Retirement System ...... 119,984 Denied ...... 12/17/2019 Unpublished Miller v. State ...... 119,292 Denied ...... 12/18/2019 Unpublished Mitchell v. State...... 119,181 Denied ...... 11/25/2019 Unpublished Olga v. State ...... 115,334 Denied ...... 12/06/2019 Unpublished Patterson v. Midland Care Connection, Inc...... 118,359 Denied ...... 12/06/2019 Unpublished Peterson v. Schnurr ...... 119,869 Denied ...... 12/13/2019 57 Kan. App. 2d 56

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Power Control Devices, Inc. 56 Kan. App. 2d v. Lerner ...... 117,705 Denied ...... 12/19/2019 690 Reed v. State ...... 118,954 Denied ...... 11/25/2019 Unpublished Rincon v. State...... 119,391 Denied ...... 12/13/2019 Unpublished Roeder v. State...... 119,503 Denied ...... 12/18/2019 Unpublished Schaeffer v. State ...... 119,345 Denied ...... 12/13/2019 Unpublished Sigg v. Sevart ...... 118,631 Denied ...... 12/19/2019 Unpublished Smith v. State ...... 119,029 Denied ...... 12/18/2019 Unpublished State v. Adams ...... 120,720 Denied ...... 12/18/2019 Unpublished State v. Aggison...... 119,047 Denied ...... 11/25/2019 Unpublished State v. Agnew...... 119,627 Denied ...... 11/25/2019 Unpublished State v. Al-Bureni ...... 119,274 Denied ...... 12/19/2019 Unpublished State v. Allen ...... 118,824 Denied ...... 12/17/2019 Unpublished State v. Anno ...... 116,350 Denied ...... 12/19/2019 Unpublished State v. Appelhanz ...... 119,178 Denied ...... 12/19/2019 Unpublished State v. Arango ...... 119,320 Denied ...... 12/18/2019 Unpublished 119,321 State v. Barnes ...... 119,582 Denied ...... 12/17/2019 Unpublished State v. Barry ...... 119,033 Denied ...... 11/25/2019 Unpublished State v. Barta ………………. 117,990 Denied……………….. 12/27/2019 Unpublished State v. Bates ...... 117,419 Denied ...... 12/06/2019 Unpublished State v. Berry ...... 118,049 Denied ...... 12/18/2019 Unpublished State v. Bible ...... 119,905 Denied ...... 11/25/2019 Unpublished 119,906 119,907 State v. Bishop ...... 119,380 Denied ...... 12/18/2019 Unpublished State v. Bogart ...... 119,013 Denied ...... 12/17/2019 Unpublished State v. Brewer ...... 120,375 Denied ...... 12/18/2019 Unpublished State v. Briggs ...... 116,420 Denied ...... 12/06/2019 Unpublished State v. Brown ...... 117,163 Denied ...... 12/19/2019 Unpublished 117,620 State v. Brown ...... 119,058 Denied ...... 12/18/2019 Unpublished State v. Brownlee ...... 119,532 Denied ...... 11/25/2019 Unpublished State v. Buford ...... 119,486 Denied ...... 12/19/2019 Unpublished 119,487 State v. Burris ...... 118,053 Denied ...... 12/18/2019 Unpublished State v. Campbell ...... 119,077 Denied ...... 12/18/2019 Unpublished 119,078 State v. Carignan ...... 119,191 Denied ...... 12/18/2019 Unpublished 119,192 119,193 State v. Carpenter ...... 117,579 Denied ...... 12/19/2019 Unpublished State v. Cartmell ...... 118,787 Denied ...... 12/13/2019 Unpublished State v. Castillo ...... 119,730 Denied ...... 12/19/2019 Unpublished 119,731 State v. Castro-Moncada ...... 117,993 Denied ...... 12/19/2019 Unpublished State v. Chang ...... 118,837 Denied ...... 12/19/2019 Unpublished State v. Chapman ...... 119,482 Denied ...... 12/18/2019 Unpublished

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Cherry ...... 119,568 Denied ...... 11/25/2019 Unpublished State v. Chighisola ...... 117,033 Denied ...... 12/19/2019 Unpublished State v. Churchill ...... 118,821 Denied ...... 12/13/2019 Unpublished 118,822 State v. Conley...... 118,797 Denied ...... 11/25/2019 Unpublished 118,798 State v. Cowles ...... 119,207 Denied ...... 11/25/2019 Unpublished State v. Cuellar ...... 119,323 Denied ...... 12/18/2019 Unpublished State v. Davis ...... 119,471 Denied ...... 12/18/2019 Unpublished State v. Dilworth ...... 119,714 Denied ...... 12/19/2019 Unpublished State v. Dwyer ...... 118,940 Denied ...... 12/19/2019 56 Kan. App. 2d 848 State v. Edwards ...... 118,626 Denied ...... 12/18/2019 Unpublished State v. Edwards ...... 120,089 Denied ...... 12/13/2019 Unpublished State v. Endsley ...... 119,965 Denied ...... 11/25/2019 Unpublished 119,966 119,967 199,968 State v. Escamilla-Franco ...... 119,772 Denied ...... 12/19/2019 Unpublished State v. Evans ...... 116,149 Denied ...... 11/15/2019 Unpublished State v. Farner ...... 118,839 Denied ...... 12/18/2019 Unpublished State v. Fernandez ...... 120,575 Denied ...... 12/18/2019 Unpublished State v. Ford ...... 119,681 Denied ...... 11/25/2019 Unpublished State v. Franco-Monserrate .... 118,573 Denied ...... 12/06/2019 Unpublished State v. Garza ...... 118,840 Denied ...... 12/19/2019 Unpublished State v. Gaskill...... 118,793 Denied ...... 11/25/2019 Unpublished State v. Gerdzos ...... 119,879 Denied ...... 12/13/2019 Unpublished State v. Gihring ...... 118,234 Denied ...... 12/23/2019 Unpublished State v. Gilbert ...... 120,564 Denied ...... 12/18/2019 Unpublished State v. Gilbert ...... 118,491 Denied ...... 12/06/2019 Unpublished State v. Gill ...... 119,986 Denied ...... 12/19/2019 56 Kan. App. 2d 1278 State v. Gillespie ...... 118,617 Denied ...... 12/19/2019 Unpublished State v. Golston ...... 118,471 Denied ...... 12/06/2019 Unpublished State v. Graham ...... 118,691 Denied ...... 12/19/2019 Unpublished State v. Grayson...... 119,794 Denied ...... 11/25/2019 Unpublished State v. Griffin ...... 119,140 Denied ...... 11/25/2019 Unpublished State v. Hall ...... 118,915 Denied ...... 12/13/2019 Unpublished State v. Hammarlund ...... 119,435 Denied ...... 12/18/2019 Unpublished State v. Harris ...... 119,496 Denied ...... 12/18/2019 Unpublished State v. Harrod ...... 120,674 Denied ...... 12/18/2019 Unpublished State v. Hay ...... 119,405 Denied ...... 12/18/2019 Unpublished 119,406 State v. Hay ...... 119,407 Denied ...... 12/18/2019 Unpublished 119,408 119,409 119,410 State v. Hayden ...... 118,506 Denied ...... 12/19/2019 Unpublished

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Haynes ...... 118,195 Denied ...... 12/19/2019 Unpublished State v. Hernandez ...... 118,985 Denied ...... 12/19/2019 Unpublished State v. Herring ...... 118,648 Granted...... 12/17/2019 Unpublished State v. Hill ...... 119,602 Denied ...... 12/13/2019 Unpublished State v. Hodges ...... 119,868 Denied ...... 11/25/2019 Unpublished State v. Holguin-Loredo ...... 118,740 Denied ...... 12/19/2019 Unpublished State v. Hopper ...... 119,803 Denied ...... 12/19/2019 Unpublished State v. Howser ...... 120,393 Denied ...... 12/18/2019 Unpublished State v. Hughes ...... 118,037 Denied ...... 12/17/2019 Unpublished 118,203 State v. Hunt ...... 119,972 Denied ...... 12/13/2019 Unpublished 119,973 State v. Ibarra ...... 120,914 Denied ...... 12/18/2019 Unpublished State v. Jacobs ...... 118,863 Denied ...... 12/19/2019 Unpublished State v. Kemp ...... 119,069 Denied ...... 11/25/2019 Unpublished State v. Kendrex ...... 119,833 Denied ...... 12/18/2019 Unpublished State v. Kirkendoll ...... 119,516 Denied ...... 12/19/2019 Unpublished State v. Kornelson ...... 118,091 Granted...... 12/17/2019 Unpublished State v. Lewis ...... 119,394 Denied ...... 12/17/2019 Unpublished State v. Long ...... 119,526 Denied ...... 12/18/2019 Unpublished State v. McGee-Darby ...... 118,776 Denied ...... 12/17/2019 Unpublished State v. McGuire ...... 118,926 Denied ...... 11/25/2019 Unpublished 118,927 118,928 119,006 State v. McLaughlin ...... 118,888 Denied ...... 11/25/2019 Unpublished State v. Merrills ...... 119,478 Denied ...... 12/19/2019 Unpublished State v. Miera ...... 117,554 Denied ...... 12/17/2019 Unpublished State v. Miller ...... 118,174 Denied ...... 12/06/2019 Unpublished State v. Montgomery ...... 118,558 Denied ...... 12/06/2019 Unpublished State v. Montgomery ...... 118,205 Denied ...... 12/06/2019 Unpublished State v. Moon ...... 119,423 Denied ...... 12/18/2019 Unpublished State v. Moore ...... 118,607 Granted; summarily vacated; remanded to Ct. of App...... 12/19/2019 Unpublished State v. Morton ...... 119,647 Denied ...... 12/18/2019 Unpublished State v. Mosley ...... 119,816 Denied ...... 11/25/2019 Unpublished 119,817 119,818 State v. Munoz-Benitez ...... 118,229 Denied ...... 12/06/2019 Unpublished State v. Norton ...... 120,276 Denied ...... 12/18/2019 Unpublished State v. Oliver ...... 119,443 Denied ...... 12/18/2019 Unpublished State v. Orona ...... 118,850 Denied ...... 11/25/2019 Unpublished 118,851 State v. Ortiz ...... 119,180 Denied ...... 12/19/2019 Unpublished State v. Patton ...... 119,729 Denied ...... 12/18/2019 Unpublished State v. Phoenix ...... 115,694 Denied ...... 12/18/2019 Unpublished State v. Pitts ...... 118,872 Denied ...... 12/13/2019 Unpublished

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Pledger ...... 118,391 Denied ...... 12/19/2019 Unpublished State v. Pollman ...... 118,672 Granted...... 12/17/2019 56 Kan. App. 2d 1015 State v. Portillo ...... 119,756 Denied ...... 12/18/2019 Unpublished State v. Pouncil ...... 119,098 Denied ...... 12/18/2019 Unpublished State v. Pritchard ...... 118,637 Denied ...... 12/13/2019 Unpublished State v. Rife ...... 119,326 Denied ...... 12/18/2019 Unpublished State v. Rivas ...... 119,462 Denied ...... 12/17/2019 Unpublished (State's pet. for rev. pending) State v. Rodgers ...... 118,447 Denied ...... 12/19/2019 Unpublished State v. Rodriguez ...... 118,861 Denied ...... 11/25/2019 Unpublished State v. Rogers ...... 118,494 Denied ...... 12/18/2019 Unpublished State v. Ruhl ...... 113,181 Denied ...... 12/19/2019 Unpublished State v. Sesmas ...... 120,446 Denied ...... 12/13/2019 Unpublished State v. Shah ...... 119,279 Denied ...... 12/18/2019 Unpublished 119,280 State v. Shanholts ...... 118,911 Denied ...... 12/18/2019 Unpublished 118,912 State v. Siddons ...... 120,280 Denied ...... 12/18/2019 Unpublished State v. Smith ...... 119,234 Denied ...... 12/18/2019 Unpublished State v. Smith ...... 118,042 Granted; summarily vacated; remanded 56 Kan. App. 2d to Ct. of App...... 12/27/2019 343 State v. Staples...... 119,252 Denied ...... 12/18/2019 Unpublished State v. Steele ...... 118,245 Denied ...... 12/06/2019 Unpublished State v. Swindler ...... 118,484 Denied ...... 12/19/2019 Unpublished State v. Taylor ...... 118,160 Denied ...... 12/17/2019 Unpublished State v. Terry ...... 119,449 Denied ...... 12/18/2019 Unpublished State v. Thaxton ...... 117,965 Denied ...... 12/19/2019 Unpublished State v. Thompson ...... 118,913 Denied ...... 12/16/2019 Unpublished State v. Tisdale ...... 118,864 Denied ...... 12/13/2019 Unpublished State v. Toothman ...... 115,716 Denied ...... 10/11/2019 Unpublished State v. Travis ...... 120,559 Granted...... 12/04/2019 Unpublished State v. Tubbs ...... 118,179 Denied ...... 12/19/2019 Unpublished State v. Turner ...... 120,048 Denied ...... 12/18/2019 Unpublished State v. Turner ...... 119,105 Denied ...... 12/18/2019 Unpublished State v. Turner ...... 119,211 Denied ...... 12/19/2019 Unpublished 119,215 State v. Ulery ...... 119,567 Denied ...... 11/25/2019 Unpublished State v. Valentine ...... 119,164 Denied ...... 12/17/2019 Unpublished State v. Vaughan ...... 119,610 Denied ...... 12/19/2019 Unpublished State v. Voth ...... 119,199 Denied ...... 12/13/2019 Unpublished State v. Walker ...... 118,703 Denied ...... 12/13/2019 Unpublished State v. Warner ...... 118,096 Denied ...... 12/19/2019 Unpublished State v. Williams ...... 118,781 Denied ...... 11/25/2019 Unpublished State v. Williams ...... 119,357 Denied ...... 12/13/2019 Unpublished State v. Yoakum ...... 118,858 Denied ...... 11/25/2019 Unpublished

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DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Young ...... 119,265 Granted...... 12/19/2019 56 Kan. App. 2d 1146 Sumpter v. State...... 117,732 Denied ...... 12/16/2019 Unpublished Taylor v. State ...... 119,251 Denied ...... 12/13/2019 Unpublished Thorpe v. Kraft ...... 118,960 Denied ...... 12/17/2019 Unpublished Toothman v. Sauers ...... 120,724 Denied ...... 12/19/2019 Unpublished Walling v. State ...... 120,102 Denied ...... 11/25/2019 Unpublished White v. Kansas Dept. of Revenue.……………...…. 117,956 Denied……………….. 12/27/2019 Unpublished

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SUBJECT INDEX 310 Kan. No. 3 (Cumulative for Advance Sheets 1, 2, and 3) Subjects in this Advance Sheet are marked with *. PAGE ADMINISTRATIVE LAW:

Driver's License Suspension—Judicial Review—Consideration of Post- Driving Alcohol Consumption by Officer Required. An officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect's post-driving alcohol consumption. Rea- sonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer's personal observations of the scene or the suspect suggest the possibility of post-driving alcohol consumption. Such consumption is a factor to be considered and evaluated. Reasonable grounds to believe a driver is under the influence demands thoughtful examination of the behavior of a driver before, during, and after he or she is behind the wheel. Rosendahl v. Kansas Dept. of Revenue ………………..…….... 474

Driver's License Suspension Case—Appellate Review. In a driver's license suspension case, when the only issue before the court is whether a law enforcement officer had reasonable grounds to request an evidentiary breath test and the facts are undisputed, an appellate court has de novo review. Rosendahl v. Kansas Dept. of Revenue ………………..……….. 474

Driver's License Suspension Hearing—List of Issues That May Be Ad- dressed at Hearing. K.S.A. 2015 Supp. 8-1020(h)(2) sets forth an exclusive list of issues that may be addressed at an administrative hearing on a driver's license suspension when the officer certifies that a person has failed a breath test which includes whether a law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol. Rosendahl v. Kansas Dept. of Revenue …..…….. 474

Kansas Judicial Review Act—Appellate Review. When reviewing an agency action under the Kansas Judicial Review Act, a court shall grant relief only when it determines that the agency violated one or more of the provisions listed in K.S.A. 2018 Supp. 77-621(c)(1)-(8). Via Christi Hospitals Wichita v. Kan-Pak ……………..….………….. 883*

AGENCY:

Amanuensis Acts as Extension of Principal. An amanuensis is not, strictly speaking, an agent but acts as an extension of the principal. In re Estate of Moore …………………………………………………. 557

"Amanuensis" Definition. An amanuensis is a person who takes dictation or who puts in writing what another person has dictated. In re Estate of Moore ……………………………………………….... 557

Duty of Amanuensis Similar to Duty of Agent—Same Burden of Proof to Establish Authority. Sufficient parallels exist between the duty of an amanuensis to transcribe faithfully at the direction of another and the duty

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of an agent to act in good faith on behalf of a principal that the same burden of proof applies to establishing the authority of either an amanuensis or an agent. In re Estate of Moore ………………………………………….. 557

APPEAL AND ERROR:

Admissibility of Evidence—Appellate Review. The admissibility of evidence under K.S.A. 60-455 is subject to harmless error analysis on appeal. State v. Claerhout …………………………………………………….. 924*

Burden of Proof on Litigants and Their Counsel to Object to Inade- quate Findings of Fact and Conclusions of Law. Generally, litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct such inadequacies, and, without any objection, an appellate court will not consider omissions in findings. State v. Ballou …………...…. 591

Burden on Party to Designate Record Which Establishes Claim—Ap- pellate Review. The burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims. In re A.A.-F. …………………………………………………………… 125

Collateral Attack on Jurisdiction Based on Complaint—State v. Hall Not Applicable. State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), does not apply to collateral attacks challenging jurisdiction based on the charging document in a criminal case so long as the charged offense is a crime under Kansas law and the defendant was adequately apprised of that alleged offense. State v. Harris …………………………………………..…… 1026*

Court of Last Resort Follows Own Precedent. A court of last resort will follow the rule of law established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent. Northern Natural Gas Co. v. ONEOK Field Services Co. ………….... 644

Cumulative Error Test—Application. The test for determining whether cumulative error requires reversal of a defendant's conviction is whether the totality of the circumstances substantially prejudiced the defendant and denied that defendant a fair trial. State v. Harris ……………..……….. 1026*

Cumulative Trial Errors—Totality of Circumstances Test—Appellate Review. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Chavez ……………………………………………………….... 421

Denial of Motion to Withdraw Plea—Appellate Review. An appellate court generally reviews the denial of a postsentence motion to withdraw a guilty plea for an abuse of discretion. State v. Fox ……………...…….. 939*

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District Court's Grant of Motion to Dismiss—Appellate Review. An appellate court reviewing a district court's decision to grant a motion to dismiss will assume as true the well-pleaded facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, dismissal is improper. Williams v. C-U-Out Bail Bonds …………………………….……..… 775*

District Court's Ruling on Motion to Suppress—Appellate Review. In reviewing the granting or denial of a motion to suppress evidence, appellate courts determine whether the factual findings underlying the district court's decision are supported by substantial competent evidence. Its ultimate legal conclusions are reviewed de novo. Appellate courts do not reweigh evidence or make credibility determinations. State v. Sanders ………..… 279

Driver's License Suspension—Courts Evaluate Reasonable Grounds under Probable Cause Standards. Kansas courts evaluate reasonable grounds by looking to probable cause standards. Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime. Rosendahl v. Kansas Dept. of Revenue ………………………...…….. 474

Foreign Judgments or Orders—Exercise of Comity Principle—Appel- late Review. On appeal, Kansas appellate courts review determinations of whether to exercise comity over a foreign order for an abuse of discretion. A district court abuses its discretion if it makes an error of law, makes an error of fact, or was otherwise arbitrary, fanciful, or unreasonable. In re A.A.-F. …………………………………………………………… 125

Gang Affiliation Evidence—Admissibility—Relevance—Appellate Re- view. On these facts, gang affiliation evidence was relevant to prove the disputed facts of identity, motive, and premeditation; it was probative to explain otherwise inexplicable events surrounding the murder; and it was not unduly prejudicial because the district court gave a proper limiting instruction. State v. Dean …………………………………..………...… 848*

Governmental Immunity from Tort—Appellate Review. Whether a governmental entity is immune from liability under an exception in the Kansas Tort Claims Act is a matter of law. Accordingly, appellate review is de novo. Williams v. C-U-Out Bail Bonds ……………………….……………... 775*

Harmless Error Standard of Review. A constitutional error is harmless if the State can demonstrate beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. State v. Johnson ………………………………. 835*

Ineffective Assistance of Counsel Claim. To prevail on a claim of ineffective assistance of counsel, a defendant must first establish that counsel's performance was deficient, and, if so, further establish prejudice, i.e., there was

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a reasonable probability that the jury would have reached a different result but for the deficient performance. Breedlove v. State ……………….….. 56

Issues Not Raised Before Trial Court Cannot Be Raised on Appeal— Three Exceptions to Preservation Rule. Ordinarily, issues not raised before the trial court cannot be raised on appeal. There are three exceptions to this preservation rule: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the trial court may be affirmed because it was right for the wrong reason. State v. Perkins ……………………………………………….……..… 764

Jury Instructions—Burden on Defendant to Establish Instruction Er- ror Was Clearly Erroneous—Appellate Review. Pursuant to K.S.A. 2018 Supp. 22-3414(3), a defendant challenging the omission of an unrequested jury instruction has the burden to establish that the instruction error was clearly erroneous. Reversibility based upon the omission of an unrequested jury instruction is subject to unlimited review on appeal, based on the entire record. To reverse on the omission of an unrequested jury instruction, an appellate court must be firmly convinced that the omission adversely affected the jury's verdict. State v. Chavez …………………………...….. 421

K.S.A. 22-3504 and K.S.A. 60-1507 Motions Require Determination Whether Hearing and Appointment of Counsel Required. Appellate courts treat motions under K.S.A. 22-3504 like motions under K.S.A. 60- 1507 for purposes of determining whether a hearing and appointment of counsel are required. State v. Redding …………………………..……… 15

Multiplicity Claim—Appellate Review. Multiplicity may be considered for the first time on appeal in order to serve the ends of justice or to prevent a denial of fundamental rights. State v. Hirsh ……………………….... 321

Objection to Inadequate Findings of Fact or Conclusions of Law Re- quired to Preserve Issue for Appeal. A party must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. When a party fails to object, an appellate court can presume the district court found all facts necessary to support its judgment. Remand is necessary only where the record does not support such a presumption and the lack of findings precludes meaningful review. State v. Sanders ……………………….. 279

Plea of Guilty—Waives Multiplicity Argument. A defendant generally waives an argument that a conviction is multiplicitous by pleading guilty to that charge. Noyce v. State …………………………………………….. 394

Presumption District Courts Made Sufficient Findings of Fact and Conclusions of Law. Kansas appellate courts generally presume a district court has made sufficient findings of fact and conclusions of law to support its decision. In re A.A.-F. ……………………………………………… 125

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Prosecutorial Error—Appellate Review for Prejudice—Harmlessness Analysis Applies. Prosecutorial error is harmless if the State can show beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. State v. Ballou ……………………………...…………...……….…….. 591

Review of Case Subject to Preponderance of the Evidence Standard— Appellate Review. When reviewing a case subject to a preponderance of the evidence standard, the appellate court determines whether, without re- weighing the evidence, the district court's judgment is supported by substantial evidence when viewed in the light most favorable to the party pre- vailing below. In re Estate of Moore …………………………...……… 557

Search and Seizure—Attenuation Doctrine—Appellate Review. When a party appeals a ruling based on the attenuation doctrine, the appellate court considers a question of fact it must review to determine whether it is supported by substantial competent evidence. The ultimate legal conclusion of whether to suppress the evidence is reviewed de novo. State v. Christian …………………………………………………….… 229

— State v. Tatro ………………………………………….………….… 263

— State v. Sanders ……………………………………….………….… 279

Structural Error Affects Defendant's Basic Protections during Trial. Struc- tural error occurs when the error interferes with the court's basic function and denies a defendant the basic protections afforded during criminal trial. Structural errors are so pervasive they defy analysis by harmless-error standards and require automatic reversal. State v. Johnson ………………….……… 909*

Sufficiency of Evidence Challenge—Appellate Review. An appellate court reviews a sufficiency of the evidence challenge to determine whether, after reviewing all evidence in the light most favorable to the State, a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. It does not reweigh evidence, resolve evidentiary conflicts, or determine witness credibility while engaging in this review. State v. Howling …………………………………………………....…. 633

Withdrawal of Plea—Ineffective Assistance of Counsel Claim. When a defendant challenges the effectiveness of trial counsel with respect to a charge to which the defendant pled guilty, the defendant must show not only that counsel's performance was deficient, but also that, but for counsel's unreasonably deficient performance, the defendant would not have entered a plea but would have insisted on going to trial. Noyce v. State ………... 394

APPELLATE PROCEDURE:

Appellant's Brief—Issue without Support of Authority Is Deemed Abandoned. Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face

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of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned. In re Care & Treatment of Sigler ……………………………….……. 688

Burden on Appellant to Furnish Record Showing Prejudicial Error— Appellate Review. An appellant has the burden to furnish a record that affirmatively shows prejudicial error, and without such a record, an appellate court presumes the actions of the district court were proper. State v. Dean ……………………………………………………….… 848*

Constitutional Issue Raised for First Time on Appeal—Supreme Court Rule 6.02(a)(5) Compliance Required. Generally, parties may not raise constitutional issues for the first time on appeal unless they successfully argue that one of three recognized exceptions applies. Based on this principle, Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires an appellant's brief to include a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court. Litigants who ignore this rule risk a ruling that the issue has been waived or abandoned. State v. Sanders ……………………….…….…. 279

Failure of Litigant to Brief Issue—Appellate Review. When a litigant fails to adequately brief an issue, it is deemed abandoned. Hill v. State ………………………………………………………….... 490

Failure to File Appeal in Proper Appellate Court Not Grounds for Dis- missal. Failure to docket an appeal in the proper appellate court is not, on its own, grounds for dismissing an appeal. GFTLenexa, LLC v. City of Lenexa ………………………………..… 976*

Inverse Condemnation Appeals Initiated in Court of Appeals. Jurisdic- tion over appeals from final dispositions in inverse condemnation actions lies with the Court of Appeals. GFTLenexa, LLC v. City of Lenexa ……………………..….………… 976*

Issue Raised Sua Sponte—Parties Allowed to Brief New Issue. When an appellate court raises a new issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined. State v. Toothman ………………………………………………..…… 542

Mandate Rule—Application. The mandate rule applies to prevent district court action on remand only when an issue has already been finally settled by earlier proceedings in a case, including issuance of the appellate mandate. If a final settlement of an issue has occurred, the district judge is not free to expand upon or revise that history. The mandate rule does not, however, prevent a district judge from doing whatever else is necessary to dispose of a case. This means the district judge must not only do as the mandate directs; he or she must also do what is needed to settle other outstanding issues that must be decided to complete district court work on the case. State v. Soto ……………………………………………………………. 242

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Poverty Affidavit In Lieu of Filing Fee. A poverty affidavit may be filed in lieu of paying the $195 filing fee required by K.S.A. 2015 Supp. 60-2008 for dispositive motions. A poverty affidavit filed to originally docket a case may suffice as the poverty affidavit to subsequently file a dispositive motion under K.S.A. 2015 Supp. 60-2008 in the same case. Breedlove v. State ……………………………………………………….. 56

Unique Circumstances Doctrine—Application. The application of the unique circumstances doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error. It is limited in application to situations in which the error was by a nonparty and the parties did not contribute to creating the error. The unique circumstances doctrine is still viable, in the appropriate situation, to prevent a cause of action from being barred by the statute of limitations. In re Estate of Oroke ……… 305

— Prevent Prejudice Resulting from Mistake of Clerk of District Court. A unique circumstances test requires both a demonstration of good faith by the party seeking an enlargement of time and a reasonable basis for noncompliance within the time specified by the rules. The unique circumstances doctrine is an elastic concept that is appropriate to prevent a party from suffering prejudice as a result of a mistake by the clerk of the district court. In re Estate of Oroke …………………………………….……... 305

ATTORNEY AND CLIENT:

Disciplinary Proceeding—Disbarment. Attorney was disbarred from the practice of law for violations of the Kansas Rules of Professional Conduct governing diligence, safekeeping property, termination of representation, failure to respond and cooperate in disciplinary proceeding, and failure to file motion to withdraw upon suspension. In re Hawkins………………………..…………. 988*

— — Attorney was disciplined by disbarment following the voluntary sur- render of his license to practice law in Kansas. Respondent had pled guilty to two counts of felony theft and a disciplinary complaint regarding criminal conduct was pending. In re Toomey ……………………………...……. 488

— One-year Suspension Stayed for Additional Extended Probation Pe- riod of Two Years. Attorney who was under ongoing probation from a previous disciplinary action, was disciplined for failing to provide competent representation and failing to avoid conflicts of interest in two separate proceedings. Attorney is suspended for one-year; however the suspension is stayed for an additional extended probation period of two years. In re Delaney ………………………………………………………... 1001*

— Order of Reinstatement. Attorney's license to practice law in Kansas was reinstated following a 60-day suspension and following his compliance with CLE requirements and payment of fees required by the clerk of the appellate courts and the CLE Commission. In re Herron …….………. 714

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— — Attorney's license to practice law in Kansas was reinstated following the completion of the conditions imposed on him by the Supreme Court following an indefinite suspension. In re Najim ………….……..….…..712

— Published Censure. Attorney was disciplined by published censure for violating KRPC 8.4(c) and (g) and Rule 211(b) involving dishonest reporting of CLE credits and had been previously disciplined twice before. In re Mathews ………………………………………………..……..…. 756

— Two-Year Suspension. Attorney was suspended for two years from the practice of law in Kansas for violating numerous rules of the Kansas Rules of Professional Conduct. Given the mitigating evidence, respondent will be allowed to seek reinstatement after one year of suspension. If reinstated, respondent must be placed on probation. In re Shepherd ……..……….739

ATTORNEY FEES:

Award of Attorney Fees for Services on Appeal—Requirements for Af- fidavit Attached to Motion for Fees. Third, a movant must attach an affidavit to the motion for attorney fees specifying: (A) the nature and extent of the services rendered; (B) the time expended on the appeal; and (C) the factors considered in determining the reasonableness of the fee, which are set forth in Kansas Rule of Professional Conduct 1.5 (2019 Kan. S. Ct. R. 300). In re Estate of Oroke …………………………………………….. 305

— Requirement of Timely Motion for Fees on Appeal under Rule 5.01. Second, a motion for attorney fees on appeal must be made under Supreme Court Rule 5.01 (2019 Kan. S. Ct. R. 30) and be filed no later than 14 days after oral argument or 14 days after the day argument is waived or the date of the letter assigning the case to a nonargument calendar, whichever is later. A motion filed after a Kansas Supreme Court oral argument is not timely filed for consideration of the fees for services while the appeal was pending in the Court of Appeals. In re Estate of Oroke …………….….. 305

— Three Requirements under Supreme Court Rule—Appellate Court's Considerations. Kansas Supreme Court Rule 7.07 (2019 Kan. S. Ct. R. 50) sets forth three requirements this court must consider when attorney fees are sought on appeal. First, this court may award attorney fees for services on appeal if the district court had authority to award attorney fees. Under the facts of this case, authority to award attorney fees is found under K.S.A. 59- 1504, which permits necessary expenses and attorney compensation from the estate when any person named in a will seeks to admit it to probate, whether successful or not. In re Estate of Oroke ……..……………...... 305

CIVIL PROCEDURE:

Motion to Dismiss—Amended Petition's Allegations in This Case Not Bare Legal Conclusions. A pleading's bare legal conclusions need not be credited absolutely in the same way that the plaintiffs' factual allegations must be when a judge rules on a motion to dismiss. But, in this case, the amended petition's allegations that bail bondsmen intended to enter the

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plaintiffs' home without legal authority and that police officers left the scene with full knowledge of the bondsmen's illegal conduct were not bare legal conclusions. Williams v. C-U-Out Bail Bonds …………………………….… 775*

Motion to Dismiss for Failure to State Claim—Appellate Review. Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. Williams v. C-U-Out Bail Bonds ………………………………..……. 775*

CIVIL SERVICE:

Civil Service Act—Board Has No Jurisdiction over Retaliatory Job Ac- tions. The Civil Service Board's jurisdiction under the Civil Service Act, K.S.A. 2018 Supp. 75-2929d(a), does not extend to retaliatory job actions in work assignments, relocations, or transfers. Hill v. State ………..…. 490

CONSTITUTIONAL LAW:

Due Process Clause Protections. The Due Process Clause of the Four- teenth Amendment to the United States Constitution protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. State v. Johnson ……………………………………………………… 835*

First Amendment Right to Freedom of Speech—True Threat Speech Is Punishable. The freedom of speech referred to in the First Amendment to the United States Constitution does not include a freedom to disregard restrictions on certain well-defined and narrowly limited categories of speech that the government may regulate and, in some circumstances, punish. A true threat falls within one category of speech the government may punish. State v. Boettger ……………………………………………………… 800*

— True Threats Definition. True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not intend to commit violence. State v. Boettger …………………………………………….……...… 800*

Fourth Amendment—Exclusionary Rule—Illegal Search and Sei- zure—Suppression of Evidence. Under the exclusionary rule, if a criminal defendant challenges the State's use of evidence obtained in violation of the Fourth Amendment to the United States Constitution, a court may suppress the primary evidence obtained as a direct result of an illegal search or seizure and evidence later discovered and found to be derivative of an illegality. But the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. Instead, to trigger the exclusionary rule, police conduct must be sufficiently deliberate, reckless, or grossly negligent, or, in some circumstances, recurring or systemic negligence, so that exclusion can meaningfully deter it. State v. Tatro ………………………………………………………...… 263

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— State v. Sanders ……………………………………….………….… 263

— — Illegal Search or Seizure—Suppression of Evidence. Under the exclusionary rule, if a criminal defendant challenges the State's use of evidence obtained in violation of the Fourth Amendment to the United States Constitution, a court may suppress the primary evidence obtained as a direct result of an illegal search or seizure and evidence later discovered and found to be derivative of an illegality. But the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. State v. Christian ……………………..…… 229

Fourth Amendment Prohibits Unreasonable Searches and Seizures. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. The United States Supreme Court has interpreted this prohibition to require law enforcement officers who seize an individual or who conduct a search to have either a warrant or a basis for relying on one of the specific and well-recognized exceptions to the warrant requirement. State v. Sanders ………………………………………….. 279

Full Faith and Credit Clause Application—Comity Principles. Usually full faith and credit or comity principles apply when a court of one state is presented with the order of another state. Under the Full Faith and Credit Clause of the United States Constitution, Article IV, § 1, a foreign judgment—that is, the judgment of another state—carries the same force and effect in Kansas as it has in the state where the judgment was rendered. If the Full Faith and Credit Clause applies, a judgment of a sister state with jurisdiction cannot be impeached for irregularities in the proceedings or erroneous rulings but must be regarded as binding, until set aside by the court rendering it or by a reviewing court on appeal. Generally, however, the Full Faith and Credit Clause does not apply to orders that are nonfinal or inter- locutory. Those orders are generally subject to principles of comity. Under comity principles, courts of one state give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect. In re A.A.-F. ……………………………………………..…… 125

Right to Speedy Trial—Applicable to Juvenile Proceedings. The right to a speedy trial guaranteed under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights applies in juvenile offender proceedings under the Revised Kansas Juvenile Justice Code, K.S.A. 2018 Supp. 38-2301 et seq. State v. Owens ……………………………………………………..…. 865*

Search and Seizure—Warrantless Search. Neither the Fourth Amend- ment to the United States Constitution nor § 15 of the Kansas Constitution Bill of Rights addresses the proper remedy for a warrantless search; the exclusionary rule is a judicially created remedy designed to deter unlawful searches and seizures by prohibiting the prosecution's use of unconstitutionally obtained evidence. State v. Perkins ……………………………… 764

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Violation of Right to Procedural Due Process under Fourteenth Amendment—Analysis. In considering if there has been a violation of the right to procedural due process protected by the Fourteenth Amendment to the United States Constitution, a court weighs: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State's interest in the procedures used, including the fiscal and administrative burdens that any additional or substitute procedures would entail. In re A.A.-F. …………………………… 125

CONTRACTS:

Clear and Convincing Evidence Requirement—Party Acting as Aman- uensis. A party must prove by a preponderance of clear and convincing evidence that a writing was carried out by a party acting as an amanuensis. In re Estate of Moore …………………………………………………. 557

Presumption of Competency. Courts presume that every adult is fully competent to enter into a contract until satisfactory proof to the contrary is presented. In re Estate of Moore …………………………………..…. 557

Privity of Contract—Relationship Existing between Two or More Con- tracting Parties. Privity of contract is that connection or relationship existing between two or more contracting parties. Privity between the plaintiff and the defendant with respect to the subject of the lawsuit is essential to the maintenance of any action on a contract. GFTLenexa, LLC v. City of Lenexa …………………………..……… 976*

Requirements of Valid Contracts. Competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy and, in the absence of fraud, mistake, or duress, a party that has fairly and voluntarily entered into such a contract is bound thereby, even if it was unwise or disadvantageous to that party. GFTLenexa, LLC v. City of Lenexa ……………………………..…… 976*

Signature by Amanuensis—Validity. When an amanuensis renders a signature for a person, acting in the presence of such person and at such person's direction, the signature becomes the signature of the person for whom it is made, and it has the same validity as if it had been written by the person giving the direction. In re Estate of Moore ………………..…………... 557

CONTEMPT:

Indirect Contempt Hearing—Accused Person Must Be Present in Court. Under K.S.A. 2018 Supp. 20-1204a, a district judge must not proceed with an indirect contempt hearing until the accused person is present in court. In re Paternity of S.M.J. v. Ogle ……………...………………. 211

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COURTS:

Disciplinary Proceeding—Public Reprimand. Court reporter was disciplined by public reprimand for violation of a rule adopted by the State Board of Examiners of Court Reporters, Board Rule No. 9.F.9., which requires maintaining impartiality toward a defendant in a criminal trial. In re Shepard ……………………………………………….……….. 1017*

Kansas Courts Have Jurisdiction Derived from Kansas Constitution. Kansas courts have authority—in other words, the judicial power—to hear only those matters over which they have jurisdiction. That jurisdiction derives from Article 3, sections 1, 3, and 6 of the Kansas Constitution. Those provisions grant Kansas courts jurisdiction as provided by law. Statutes serve as the usual mechanism for the law to define jurisdiction. In re A.A.-F. …………………………………………………………… 125

Pro Se Pleadings—Court's Duty to Liberally Construe—Limits. Courts are to interpret pro se pleadings based upon their contents and not solely on their title or labels. But there are limits to a court's duty to liberally construe pro se pleadings; a court is not required to divine every conceivable interpretation of a motion, especially when a movant repeatedly asserts specific statutory grounds for relief and propounds arguments related to that specific statute. State v. Redding …………………………………………..…….. 15

Standing of Party to Seek Relief—Party Must Establish Connection between Injury and Challenged Conduct. A party to a court action must show that he or she has standing to seek the requested relief, both under the applicable statutory provisions and under traditional, common-law principles. In order to have traditional standing, a party must show a cognizable injury and establish a causal connection between the injury and the challenged conduct. Creecy v. Kansas Dept. of Revenue ……………….…. 454

CRIMINAL LAW:

Aiding and Abetting—Prerequisite for Charge. An aider or abettor cannot be guilty of a crime if the primary actor did not have the requisite mental state of the crime. State v. Gentry …………………………………….. 715

Aggravated Incest Statute Not More Specific Crime Than Aggravated Criminal Sodomy or Rape. Since 1993, the aggravated incest statute criminalizes "[o]therwise lawful sexual intercourse or sodomy" with certain prohibited persons. K.S.A. 2011 Supp. 21-5604(b)(2)(A). Under this definition, aggravated incest is not a more specific crime than aggravated criminal sodomy or rape, which can never be "[o]therwise lawful." State v. Toothman ……………………………………………………... 542

Alternative Means Case—Determination. Alternative means are legisla- tively determined, distinct, material elements of a crime, as opposed to descriptions of the material elements or of the factual circumstances that would prove the crime. State v. Cottrell ……………………………….. 150

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Attempted Second-Degree Murder and Attempted Reckless Involun- tary Manslaughter—Crimes Not Recognized in Kansas. Attempted unintentional but reckless second-degree murder and attempted reckless involuntary manslaughter are not recognized offenses in Kansas. State v. Gentry …………………………………………………….….. 715

Challenge to Legality of Sentence—Judged When Sentence Pronounced. The legality of a sentence challenged through a motion to correct illegal sentence is judged as of the time the sentence was pronounced. Subsequent changes in the law do not render a legal sentence illegal. State v. Bryant ……………………………………………….…..…… 920*

Closing Argument—Prosecutor's Statement. A prosecutor does not shift the burden of proof by pointing out the implausibility of a defendant's account. State v. Ross …………………………………………………….. 216

Criminal History—Interpretation of Kansas Sentencing Guidelines Act—Appellate Review. The classification of prior offenses for criminal history purposes involves interpretation of the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq. Statutory interpretation is a question of law subject to unlimited review. State v. Ewing …….… 348

— State v. Saucedo ………………………………………………….… 361

Criminal Intent—Recklessness May Be Proved by Establishing De- fendant Acted Knowingly. Because K.S.A. 2018 Supp. 21-5202(c) permits recklessness to be proved by establishing the defendant acted knowingly, the presumption under K.S.A. 2018 Supp. 21-5427(c)—that a person who violates a protective order after having been served with the order acts knowingly—is not internally inconsistent with the recklessness element of stalking under K.S.A. 2018 Supp. 21-5427(a)(3). State v. Chavez ….…. 421

Criminal Liability—No Logically Impossible Crimes under K.S.A. 2018 Supp. 21-5202(c). Under K.S.A. 2018 Supp. 21-5202(c), the State can establish that a defendant acted recklessly if it proves that the defendant acted knowingly or intentionally. But the statute does not create logically impossible criminal offenses. State v. Gentry ………………….…….. 715

Criminal Sodomy Not Lesser Included Offense of Aggravated Criminal Sodomy. Criminal sodomy, as defined in K.S.A. 2011 Supp. 21-5504(a)(3), is not a lesser included offense under K.S.A. 21-3107(2)(b) of aggravated criminal sodomy, as defined in K.S.A. 2011 Supp. 21-5504(b)(3)(A). State v. Toothman …………………………………………………….. 542

Cumulative Error Doctrine. A single, nonreversible error does not establish reversible cumulative error. State v. Ballou …………………..…. 591

Cumulative Error Doctrine—Reversal Not Required under Facts of This Case. Defendant is not entitled to reversal of his conviction under the cumulative error doctrine. State v. Pruitt ……………………..……… 952*

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— Reversal Not Compelled under These Facts. Immaterial assumed error under Brady and an individually harmless prosecutorial error during closing argument do not compel reversal under the cumulative error doctrine in this case. State v. Hirsh ………………………………………………...…... 321

Defendant's Right to Speedy Trial—Four Factors for Court to Con- sider if Violation Asserted. When a criminal defendant asserts a violation of his or her right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, Kansas courts weigh four nonexclusive factors: the length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. The court balances the factors, weighing the conduct of both prosecution and accused. Because the test requires a balancing, none of these factors is a necessary or sufficient condition for finding a violation. State v. Owens ………………………………………...……………… 865*

Direct Appeal—Change in Law Will Benefit Defendant. In a direct appeal, a defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending. State v. McAlister ………….… 86

— State v. Dawson ………………………………………………….… 112

Double Jeopardy Issue—Analysis—Whether Convictions for Same Of- fense. In analyzing a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one? Under the first component, if the conduct is discrete, i.e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation. If the charges arise from the same act or transaction, the conduct is unitary and the second component must be analyzed to see if the convictions arise from the same offense. Under the second component, it must be determined whether the convictions arise from a single statute or from multiple statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute, the unit of prosecution test is applied. State v. Hirsh ………………...…….……………………………..321

Driving While Intoxicated—Prior Diversion for DUI Relevant. Evi- dence of a prior diversion agreement for driving while intoxicated may be relevant to establishing that a defendant was on notice that driving while intoxicated is dangerous. State v. Claerhout ……..………...……..….. 924*

Exculpatory Evidence—Prosecutor's Duty to Disclose Evidence Favor- able to Accused. There are three components or essential elements of a claim under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215 (1963): (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that

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evidence must have been suppressed by the State, either willfully or inad- vertently; and (3) the evidence must be material so as to establish prejudice. State v. Hirsh …………………….…………………………………….. 321

Illegal Sentence—Law in Effect When Sentence Pronounced Deter- mines Legality. After a direct appeal is final, a movant seeking the correction of an illegal sentence under K.S.A. 22-3504(1) will have the sentence's legality determined by the law in effect at the time the sentence was pronounced, unaffected by any subsequent change in the law. State v. McAlister ……………………………………………………..… 86

— State v. Dawson ………………………………………………….… 112

Illegal Sentence Issue—Appellate Review. K.S.A. 22-3504(1) directs that an illegal sentence may be corrected at any time. Consequently, an appellate court has the authority to consider an illegal sentence issue raised for the first time on appeal. State v. Sartin …………………………………….. 367

Imposition of Extended Probation Term Is Departure Sentence—Sub- stantial and Compelling Reasons Required to Be Stated on Record. Consistent with our precedent in State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), the recommended duration of probation of 24 months for a severity level 7 crime set forth in K.S.A. 2018 Supp. 21-6608(c)(1)(B) is the presumptive probation term and the district court's imposition of an extended term of probation beyond the 24 months constitutes a departure that must be supported on the record by substantial and compelling reasons. State v. Hambright ……………………………………….……………. 408

Jury Instructions—Lesser Included Offense—Aggravated Battery. Ag- gravated battery, as defined in K.S.A. 2014 Supp. 21-5413(b)(2)(A) or (B), qualifies as a legally appropriate lesser included offense of aggravated battery, as defined in K.S.A. 2014 Supp. 21-5413(b)(1)(A). The lesser offenses require a reckless culpable mental state while the greater offense requires a knowing culpable mental state. State v. Perez-Medina …………….… 525

— Reckless Aggravated Battery Offense Instruction Not Applicable in This Case. Even if error in refusing to instruct on reckless aggravated battery offenses is assumed in this case, it is not reversible. No evidence supported a reckless act by the defendant. State v. Perez-Medina ……………………………………………...… 525

K.S.A. 22-3504 Motion—District Court Determines Whether Appoint- ment of Attorney for Movant Required. If the district court determines that a K.S.A. 22-3504 motion and the files and records of the case do not present a substantial question of law or triable issue of fact, the court is not statutorily required to appoint an attorney for the movant. State v. Redding ………………………………………………………… 15

— District Court Determines Whether Movant's Due Process Right to Counsel Implicated. If the district court conducts a hearing to determine whether a K.S.A. 22-3504 motion presents substantial questions of law or

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triable issues of fact at which the State is represented by counsel, the movant's due process right to appointed counsel is implicated. A district court's review of the State's response to the motion, standing alone, does not trigger the movant's due process right to counsel. State v. Redding ……….…… 15

Kansas Offender Registration Act—Defendant Proves No Punitive Ef- fects of KORA Registration. Because the defendant in this case provides no evidence or argument to establish the punitive effects of registration under the Kansas Offender Registration Act, K.S.A. 2018 Supp. 22-4901 et seq., he must register as a violent offender. State v. Perez-Medina …………………………………………..…...… 525

Kansas Sentencing Guidelines Act—Classification of Prior Out-of- State Convictions as Person or Nonperson Offense. The revised Kansas Sentencing Guidelines Act uses prior out-of-state convictions when calculating an offender's criminal history score. Under the Act, the State classifies an out-of-state conviction as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime. State v. Ewing ………………………..………… 348

— State v. Saucedo ………………………………………………….… 361

Kidnapping—Phrase in Kidnapping Statute Does Not Create Alterna- tive Means. The statutory language "to facilitate flight or the commission of any crime" in K.S.A. 2018 Supp. 21-5408(a)(2) does not create alternative means. It merely provides options within a means. State v. Harris ………………………………………….…..……….. 1026*

— Taking or Confining to "Facilitate" Crime. The "taking or confining" element for the crime of kidnapping under K.S.A. 2018 Supp. 21-5408 is satisfied if the purpose of the taking or confining was to "facilitate" the commission of another crime. The term "facilitate" means something more than to just make the crime's commission more convenient. The taking or confining must have some significant bearing on making the other crime's commission easier. State v. Harris ………………………….……… 1026*

— — Proof. To constitute a kidnapping under K.S.A. 2018 Supp. 21- 5408(a)(2) when a taking or confining is alleged to have been done to facilitate another crime's commission, the resulting taking or confinement: (a) must not be slight, inconsequential, or merely incidental to the other crime; (b) must not be of the kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime's commission substantially easier or substantially lessens the risk of detection. State v. Harris ………………………………… 1026*

Knowledge Requirement under K.S.A. 2011 Supp. 21-5705(a). To convict a defendant of possession with intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), the State must prove the defendant had knowledge of the nature of the controlled substance. This knowledge requirement can be established by proving the defendant either

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knew the identity of the substance or knew that the substance was controlled. A mistake of fact about the nature of a controlled substance can negate the knowledge requirement. State v. Rizal ……….…………….. 199

Legality of Sentence under K.S.A. 22-3504—Controlled by Law in Ef- fect When Sentence Pronounced. The point in time to assess a criminal sentence's legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). State v. Tauer …………………………………………………...…...….... 1

Motion for New Trial—Defendant's Burden of Proof. To grant a motion for new trial based on newly discovered evidence, a district court must determine that (1) the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial, and (2) the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Dean ………... 848*

Motion to Correct Illegal Sentence Not a Challenge to Constitutionality of Sentence. A motion to correct illegal sentence is an inappropriate vehicle for challenging the constitutionality of a sentence. State v. Bryant .…. 920*

Motion to Correct Illegal Sentence under K.S.A. 22-3504—Law in Ef- fect When Sentence Pronounced Controls. When the legality of a sentence is challenged with a motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1), the determination of the sentence's legality is controlled by the law in effect at the time the sentence was pronounced. For purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law. State v. Sartin ……… 367

Motion to Withdraw Plea—Statutory Requirements. The one-year statute of limitations for moving to withdraw a plea in K.S.A. 2018 Supp. 22- 3210(e)(1) begins to run for preexisting claims on the date the amended statute became effective, April 16, 2009. A motion filed after the statute of limitations has expired may be granted only if the movant establishes excusable neglect. State v. Fox …………………………………….…… 939*

Multiple Act Case—Determination. Multiple acts are legally and factually separate incidents that each independently satisfy the elements of the charged offense. State v. Cottrell …………………………….……….. 150

Multiplicity—Factors to Consider When Determining Whether Con- victions Based on Same Conduct. Factors considered to determine whether convictions arise from the same or "unitary" conduct, satisfying the first component of the State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), rubric, are: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct. State v. Hirsh ………………………..…………………………… 321

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— Two Convictions Based on Two Threats Not Multiplicitous in This Case. The two threats made by the defendant to the victim—the first promising to kill her and the second promising to kill their children, after the victim begged defendant not to let the children see her—qualify as the same or unitary conduct but constitute two units of prosecution under the criminal threat statute. Two convictions based on the threats are not multiplicitous. State v. Hirsh ………………………………………..…….…………… 321

Postsentence Motions—Right to Counsel. If either a motion to correct an illegal sentence or a postsentence motion to withdraw a plea presents a substantial question of law or triable issue of fact and the movant is indigent, then the district court must appoint counsel to represent the movant. And if the district court conducts a hearing at which the State will be represented by counsel, then due process of law requires the movant to be represented by counsel unless the movant waives that right. But the district court's consideration of the State's written response to either motion, standing alone, does not constitute a hearing or require the appointment of counsel. State v. Laughlin ………………………………………………………. 119

Prosecutorial Error—Court Considers Context. In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation. State v. Ross ……………………... 216

— Error Did Not Affect Outcome of Trial—Prejudice Step of Two-Step Analysis. A prosecutor's statement to a jury that the victim told the truth is error, but the prosecutor's single-sentence error did not affect the outcome of the trial in light of the whole record, which included ample impeachment evidence that was finally rejected by the jury. State v. Hirsh ………….. 321

— Factors Court Considers in Determination if Prosecutorial Error. A prosecutor's actions or statements fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial when the prosecutor presents an argument to the jury that misstates the law or argues a fact or factual inference with no evidentiary foundation. State v. Ballou ………………………………..……….…………..…… 591

— Misstatement of Law. A prosecutor's clear misstatement of law constitutes prosecutorial error. State v. Ross …………………………..…….. 216

Protection from Abuse Act—Protected Person under PFA Order May Not Waive Restraint. A protected person under a Protection from Abuse court order (PFA order) does not have the authority to unilaterally modify the court order by waiving its restraints or consenting to its violation. Con- sequently, in a stalking prosecution under K.S.A. 2018 Supp. 21- 5427(a)(3), the defendant is not entitled to have the jury instructed on the principles of an implied waiver. State v. Chavez ……………….……… 421

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Psychological Exam of Witness—District Court's Application of Fac- tors for Determination—Appellate Review. An appellate court reviews a district court's application of the factors for determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness and its ultimate decision to grant or deny a motion for a psychological evaluation of a witness for an abuse of discretion. An abuse of discretion occurs if: (1) no reasonable person would take the view adopted by the district court; (2) the decision is based on an error of law; or (3) the decision is based on an error of fact. The party asserting the district court abused its discretion has the burden to show such an abuse of discretion. State v. Ballou ………………………………………………...……… 591

Reckless Second-Degree Murder—Voluntary Intoxication Not a De- fense. Voluntary intoxication is not a defense to reckless second-degree murder. State v. Claerhout ……………………………..…………….. 924*

Resentencing—Date of Final Judgment under K.S.A. 2018 Supp. 22- 3501(1). When a conviction or convictions have been affirmed on appeal but at least some part of the sentence has been vacated and remanded to the district court for resentencing, there is no final sentence and, hence, no final judgment under K.S.A. 2018 Supp. 22-3501(1). State v. Soto ………... 242

Sentencing—Application of Statute to Sexually Violent Offenders. K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime committed on or after July 1, 2006. There are no persons convicted of a sexually violent crime on or after July 1, 2006, to whom both subsection K.S.A. 22-3717(d)(1)(A) and subsection (d)(1)(G) apply. State v. Carpenter ……………………………………………….…… 924*

— Burden of Proof on State to Prove Offender's Criminal History. The State bears the burden to prove an offender's criminal history by a preponderance of the evidence. The district court's finding that the State met that burden must be supported by substantial competent evidence. State v. Ewing ……………………………………………………..…… 348

— Classification of Prior Out-of-State Conviction as Person Crime— Requirements. A prior out-of-state conviction must have elements identical to or narrower than a Kansas person crime to be scored as a person crime. State v. Ewing …………………………………...……………… 348

— State v. Saucedo ………………………………………………….… 361

— Correction of Illegal Sentence under K.S.A. 22-3504(1)—Develop- ments in Law May Impact Analysis. Although true changes in the law cannot transform a once legal sentence into an illegal sentence for purposes of correcting an illegal sentence under K.S.A. 22-3504(1), it may be possible for developments in the law to impact the original analysis of whether the sentence was illegal when pronounced. State v. McAlister ………… 86

— State v. Dawson ………………………………………………….… 112

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— Plea Agreement—Departure Sentence. When a district court accepts the recommendation of a plea agreement to depart from an off-grid Jessica's Law hard-25 life sentence to a specific on-grid sentence, the court's failure to consider a second departure to an even shorter sentence does not render the agreed-upon sentence illegal. State v. Redding ……………………... 15

Sex Crime Case—Independent Psychological Exam of Witness—De- termination by Court—Factors. Determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness requires a district court to consider six relevant factors: (1) whether there was corroborating evidence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth. State v. Ballou ………………………………………………..…. 591

Single Conspiracy Consists of One Agreement. A single conspiracy consists of one agreement, though there may be one or more overt acts committed in furtherance of that agreement. On the facts of this case, a jury instruction listing several overt acts committed in furtherance of a single conspiracy did not present multiple acts of conspiracy. State v. Cottrell …….. 150

Speedy Trial Analysis—Length-of-Delay Factor—Complexity Factor. Even if a defendant pushes for delay in order to gain some advantage, the delay itself can be excessive and presumptively prejudicial. Complexity is generally the determinative factor separating a delay that is presumptively prejudicial from one that is not. State v. Owens ……………..….…… 865*

— Length of Delay is Triggering Factor. The length-of-delay factor is a triggering mechanism in a speedy trial analysis. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry into the other factors applied in a speedy trial analysis. State v. Owens …………………………………………………….….. 865*

— No Violation under These Facts. Under the facts of this case, the defendant failed to establish a violation of the constitutional right to a speedy trial. State v. Owens ………………..…………………..…………….. 865*

Sufficiency of Evidence Challenge—Alternative Means for Committing Crime in Jury Instruction. If a criminal defendant challenges sufficiency of the evidence on appeal in a case in which a district court instructed a jury on alternative means of committing a crime, the State must establish that it presented sufficient evidence of both alternatives. State v. Johnson ………………………………………………....…… 835*

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— Appellate Review. When a criminal defendant challenges the sufficiency of evidence on appeal, an appellate court reviews the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations about witness credibility. State v. Johnson …..…………….… 835*

Three Categories of Criminal Intent Created by Statute. K.S.A. 2018 Supp. 21-5202 creates three categories of criminal intent by describing culpable mental states, classified according to relative degrees, from highest to lowest, as follows: (1) intentionally; (2) knowingly; and (3) recklessly. But K.S.A. 2018 Supp. 21-5202(c) establishes the legal possibility that the State can prove the culpability required for the charged crime by proving a higher degree of culpability, e.g., if recklessness suffices to establish an element of the charged crime, that element is established by proof the person acted knowingly or intentionally. State v. Chavez …………………………… 421

DEEDS:

Acknowledgment Proves Execution of a Deed. An acknowledgment is not a part of a contract between parties but is only prima facie evidence of the execution of a deed. In re Estate of Moore ……………………..…. 557

Court May Consider Evidence Beyond Language and Signatures on Deeds. A court may properly consider evidence beyond the language of deeds and official signatures in ascertaining whether deeds have been effectively executed and acknowledged. In re Estate of Moore ………….... 557

Mistakes by Acknowledging Officers and Registers of Deeds May Be Corrected by Proper Proof. Acknowledging officers and registers of deeds are ministerial officers who do not act in a judicial capacity, and any mistakes they make may be explained and corrected by proper proof. In re Estate of Moore …………………………………………………. 557

Suspicious Circumstances Questioning Validity—Application of Clear and Convincing Evidence Test. When suspicious circumstances lead to questions of the validity of a testamentary document, courts are to apply a clear and convincing evidence test. In re Estate of Moore ……………. 557

Transfer of Property upon Death of Maker Is Testamentary. An instrument vesting title to property upon the death of the maker of the instrument is testamentary in character. In re Estate of Moore …………………... 557

Witnesses' Testimony May Correct Improper Acknowledgment on Deed. The testimony of witnesses to the signing of a deed may render an improperly acknowledged deed valid. In re Estate of Moore ……….... 557

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EMINENT DOMAIN:

Condemning Authority's Duty. In an eminent domain proceeding, the duty of the condemning authority is to make payment for the property that it has taken, not to account for the diversity of interests in the property. GFTLenexa, LLC v. City of Lenexa …………………………………... 976*

— Undivided Fee Rule. Under the undivided fee rule, the condemning authority treats all the various interest holders in a unit of property as a single, undivided interest when the compensatory value is appraised. GFTLenexa, LLC v. City of Lenexa ………………………….……….. 976*

Statute Allows Direct Appeal to Supreme Court if Initiated by Condemn- ing Authority. K.S.A. 2018 Supp. 26-504 governs appeals in eminent domain cases and allows appeals directly to the Supreme Court when the plaintiff has power of eminent domain. GFTLenexa, LLC v. City of Lenexa ……………………………….….. 976*

EMPLOYER AND EMPLOYEE:

Civil Service Act—Prohibits Discipline or Discrimination if Employee Files Appeal. Under K.S.A. 2018 Supp. 75-2949(g) of the Civil Service Act, no civil service employee may be disciplined or discriminated against in any way because of the employee's proper use of the Act's appeal procedure. Hill v. State ………………………………………………..……. 490

Civil Service Act's Appeal Procedure—Elements of Claim for Retalia- tory Job Action. The elements of a prima facie claim for retaliatory job action for using the Civil Service Act's appeal procedure are: (a) an employee filed a Civil Service Act appeal; (b) an employer knew the employee filed such an appeal; (c) the employer subjected the employee to a materially adverse job action; and (d) a causal connection existed between the filing of the appeal and the adverse job action. Hill v. State ………..…… 490

Duty of Reasonable Care Owed to Third Parties When Employees Act- ing within Scope of Their Employment. In Kansas, an employer owes a duty of reasonable care under the circumstances to prevent harm to third parties caused by its employees when those employees are acting within the scope of their employment. More particularized articulations of this duty are disapproved. Reardon v. King ……………………..…………….. 897*

EVIDENCE:

Appellate Court's Treatment of Pretrial Objection. An appellate court will usually not consider a pretrial objection to have been timely interposed because an in limine ruling is subject to change when the case unfolds. This rule acknowledges that different, more, or less evidence may come in at trial than was admitted or proffered at a pretrial hearing. Or a district court judge may simply see the issue in a different light after hearing additional arguments and evidence. A timely interposed objection, as required by the plain

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language of K.S.A. 60-404, is one that gives the district court the opportunity to make the ruling contemporaneous with an attempt to introduce evidence at trial. State v. Ballou ………………………………….……… 591

Exclusionary Rule Exception—Attenuation Doctrine—Application. The attenuation doctrine is an exception to the exclusionary rule. It applies when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. State v. Christian …………………………………………….………… 229

— State v. Tatro ………………………………………….………….… 263

— State v. Sanders ……………………………………….………….… 279

— — Case-by-Case Determination. No bright-line rule defines when the attenuation doctrine applies. Rather, courts must examine the particular facts of each case and determine whether those circumstances attenuate the taint of illegality. State v. Christian ………………………….………… 229

— State v. Tatro ………………………………………….………….… 263

— State v. Sanders ……………………………………….………….… 279

Expert Testimony—Application of K.S.A. 2018 Supp. 60-456(b)—No Basis for Exclusion of Forensic Interview. K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientific, technical, or other specialized knowledge. State v. Ballou ………………………………………………..……..…. 591

— State v. Howling …………………………………….………..…..… 633

— No Specific Protocol When Interviewing Child Witness. Expert testimony is not necessarily required as a foundation for introducing a child witness' interview into evidence, and an interviewer need not apply a specific formula or follow a specific protocol when interviewing a child witness. State v. Ballou …………….………………………..……...…………... 591

Materiality Standard—Reasonable Probability of Different Result. The touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial. State v. Hirsh ………………………………………………………..… 321

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Materiality Test—Brady Violations. Under the test for materiality governing all categories of Brady violations, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Hirsh …………………………………………………… 321

Materiality under Brady—Impeachment Value of One Word Was Neg- ligible in This Case. The impeachment value of one word in a law enforcement disciplinary report not disclosed to the defendant until shortly before the close of his case was negligible and thus not "material" under Brady. State v. Hirsh ………………………………………………………...… 321

Motion for New Trial—Two-Year Time Limit to File After Final Judg- ment. Under K.S.A. 2018 Supp. 22-3501(1) a motion for new trial based on newly discovered evidence may be made within two years after final judgment. State v. Soto ………………………………………..……….. 242

HABEAS CORPUS:

Due Process Right to Counsel—When "Hearing" Does Not Trigger Movant's Right to Counsel. The district court's solicitation of a written response to a K.S.A. 60-1507 motion from the State's attorney, and the court's review of the State's response, is not the functional equivalent of a hearing and does not trigger the movant's due process right to an attorney. Dawson v. State …………………………………………………………. 26

Due Process Right to Counsel if Court Holds Hearing and State Is Rep- resented by Counsel. As a matter of procedural due process, a K.S.A. 60- 1507 movant has the right to counsel when the court holds a hearing to determine whether the motion, files, and records present a substantial question of law or triable issue of fact and the State is represented by counsel at the hearing. Dawson v. State ……………………………………………..… 26

Hearing Conducted on K.S.A. 60-1507 Motion—Due Process Requires Movant Be Represented by Counsel unless Waived. If the district court conducts an actual hearing to determine whether a K.S.A. 60-1507 motion, together with the files and records in the case, present substantial questions of law or triable issues of fact, and the State is represented by counsel at the actual hearing, due process of law requires that the movant be represented by counsel unless he or she has waived the right to counsel. State v. Roberts ……………………………………………………..……. 5

Hearing on K.S.A. 60-1507 Motion—Right to Counsel unless Waived. If a district court conducts a hearing on a K.S.A. 60-1507 motion where the State will be represented by counsel, due process of law requires the movant to be represented by counsel unless the movant waives that right to counsel. Sherwood v. State …………………………………………….…………. 93

— Requena v. State ………………………………………………….… 105

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K.S.A. 60-1507 Motion—Appointment of Counsel for Indigent Movant. The protocol set forth in Lujan v. State, 270 Kan. 163, 14 P.3d 424 (2000), for a district court's handling of a K.S.A. 60-1507 motion does not require the appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has the discretion to do so. The district court may, but is not required to, appoint an indigent K.S.A. 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and records present a substantial question of law or triable issue of fact. State v. Roberts ………………………………….. 5

— Burden on Movant. Although not encouraged because it is susceptible to abuse, a district court's adoption of the State's response to a K.S.A. 60- 1507 motion as the court's entire findings of fact and conclusions of law is not, as a matter of law, always reversible error. The K.S.A. 60-1507 movant has the burden to show that the district court failed to conduct an independent review of the motion, files, and records before summarily denying the motion. Breedlove v. State ……………………………………………… 56

— Burden on Movant to Establish Evidentiary Claims. A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims, or an evidentiary basis must appear in the record. Thuko v. State …………………………. 74

— Burden on Prisoner to Show Untimely Motion within Manifest In- justice Exception. A prisoner filing a K.S.A. 60-1507 motion has the burden to establish that an untimely motion falls within the manifest injustice exception of K.S.A. 60-1507(f)(2) and that a successive motion falls within the caselaw exceptional circumstances exception. State v. Roberts ……... 5

— Determination of "Hearing" Triggering Right to Counsel. The State may file a written response to a K.S.A. 60-1507 motion. The district court's consideration of the State's response, standing alone, does not constitute a hearing for purposes of determining whether due process of law requires the movant to be represented by counsel. Sherwood v. State ………………. 93

— Requena v. State ………………………………………………….… 105

— Determination of No Relief—Summary Denial. When a K.S.A. 60- 1507 motion and the files and records of the case, including any response to the motion from the State, conclusively show that the movant is entitled to no relief under that motion, the district court may summarily deny the motion without appointing counsel for the movant. Sherwood v. State…. 93

— Requena v. State ………………………………………………….… 105

— One-Year Time Limitation—Burden on Movant to Establish Mani- fest Injustice. K.S.A. 60-1507(f) places a time limit on filing an action under that statute of one year from the date the movant's direct appeal becomes

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final, unless the time limitation is extended by the court to prevent a manifest injustice. A K.S.A. 60-1507 movant has the burden of establishing manifest injustice. Thuko v. State ……………………………………..….…. 74

— Right to Counsel. If a motion under K.S.A. 60-1507 presents substantial questions of law or triable issues of fact and the movant is indigent, the district court shall appoint counsel to assist the indigent movant. If a motion under K.S.A. 60-1507 presents a potentially substantial question of law or triable issue of fact, the district court has the statutory power to appoint counsel for movant in the exercise of its judicial discretion. Stewart v. State …………………………………………….……...……. 39

— — State Representation at Hearing Triggers Right to Counsel unless Waived. During the period after receipt of a K.S.A. 60-1507 motion in which the district court is making its determination of whether the motion, files, and record present a substantial question of law or triable issue of fact—for example, after the district court has discerned a potentially substantial issue—the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney. On the other hand, if the district court conducts a preliminary hearing to determine whether substantial issues are presented and the State is represented by counsel at that hearing, due process of law mandates that the movant be represented by counsel unless he or she has waived that right. The district court's review of the State's written response to a K.S.A. 60-1507 motion is not the functional equivalent of an actual hearing. Thuko v. State ………………………………………..…. 74

— Right to Counsel in Postconviction Proceedings. A K.S.A. 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but under K.S.A. 22-4506(b), a district court has a statutory duty to appoint an attorney to represent an indigent 60- 1507 movant whenever the motion presents substantial questions of law or triable issues of fact. Thuko v. State ……………………………………. 74

— Right to Counsel When Court Conducts Hearing. An indigent K.S.A. 60-1507 movant has a statutory right to appointed counsel when the district court finds that the motion presents substantial questions of law or triable issues of fact. Procedural due process dictates that a K.S.A. 60-1507 movant has a right to counsel whenever the district court conducts an actual hearing at which the State is represented by counsel. Breedlove v. State ….…… 56

— State's Representation at Hearing Triggers Movant's Right to Coun- sel unless Waiver. Even in circumstances where a K.S.A. 60-1507 movant is not statutorily entitled to the appointment of counsel, if the court conducts a hearing at which the State will be represented by counsel, due process of law requires that the movant be represented by counsel unless the movant waives that right to counsel. Stewart v. State ……………..……………. 39

— State's Written Response Does Not Constitute "Hearing" or Trigger Movant's Right to Counsel. The State is permitted to file a written response to a K.S.A. 60-1507 motion. The district court's consideration of the

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State's response, standing alone, does not constitute a hearing for purposes of determining whether due process of law requires the movant to be represented by counsel. Stewart v. State ………….……………..………...…. 39

— Statutory Duty to Appoint Attorney for Indigent Movant. Under K.S.A. 22-4506(b), a district court has a statutory duty to appoint an attorney to represent an indigent K.S.A. 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact. State v. Roberts ………………………………………………...………… 5

— Successive Motions. A district court is not required to entertain successive K.S.A. 60-1507 motions on behalf of the same movant unless there are exceptional circumstances. Thuko v. State …………….……………..…. 74

No Constitutional Right to Counsel unless Motion Presents Substantial Questions of Law or Issues of Fact. A K.S.A. 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but under K.S.A. 22-4506(b) a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact. Dawson v. State ………………………………………………… 26

Second or Successive 60-1507 Motion—Exceptional Circumstances to Avoid Dismissal. An inmate filing a second or successive motion under K.S.A. 60-1507 must show exceptional circumstances to avoid having the motion dismissed as an abuse of remedy. Littlejohn v. State …..……… 439

Statutory Time Limit to File K.S.A. 60-1507 Motion. K.S.A. 60-1507 places a time limit on the filing of a motion under that statute. For inmates whose claims accrued prior to the enactment of the statutory amendment establishing the time limit, the deadline for filing a 60-1507 motion was June 30, 2004. Noyce v. State ………………………………………..… 394

— Extension Allowed if Manifest Injustice. The time limit for filing a K.S.A. 60-1507 motion may be extended beyond the one-year deadline only to prevent manifest injustice, which is defined in this context as being obviously unfair or shocking to the conscience. Noyce v. State ………….. 394

Successive K.S.A. 60-1507 Motions—Burden on Movant to Establish Exceptional Circumstances. A district court is not required to entertain successive K.S.A. 60-1507 motions on behalf of the same movant unless there are exceptional circumstances. If the K.S.A. 60-1507 movant files a second or successive motion, the movant has the burden of establishing exceptional circumstances to avoid dismissal of the motion as an abuse of remedy. Dawson v. State ……………………………………………...… 26

Summary Denial of K.S.A. 60-1507 Motion—Appellate Review. When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. State v. Roberts ………………………………………….……. 5

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When K.S.A. 60-1507 Motion Shows Movant Not Entitled to Relief— Summary Denial by District Court. When a K.S.A. 60-1507 motion and the files and records of the case, including any response to the motion from the State, conclusively show that the movant is entitled to no relief under that motion, the district court may summarily deny the motion without appointing counsel for the movant. Stewart v. State ………………………. 39

JUDGMENTS:

Burden on Party Attacking Foreign Judgment. The party attacking another state's order has the burden of establishing the reasons it should not be enforced or applied. In re A.A.-F. …………………………..……… 125

Foreign Judgments—Application of Comity Principle. A Kansas court may exercise comity when Kansas law recognizes the rights upon which a decree of a sister state is based and the court decides that the enforcement of such rights does not violate any principle of Kansas public policy. In re A.A.-F. …………………………………………………………… 125

Res Judicata—Factors for Consideration. Determining whether res judicata prevents relitigation of a claim requires consideration of the: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties to the action, and (4) identity in the quality of the person or persons for or against whom the claim is made. In re Care & Treatment of Sigler ……………………………………... 688

Validity of Foreign Judgments Presumed by Kansas Courts. Kansas courts generally presume the validity of orders, journal entries, and judgments of the courts of other states. In re A.A.-F. …………….………… 125

JURISDICTION:

Burden on Party to Establish Jurisdiction. The party bringing an action and invoking a court's jurisdiction has the burden to establish jurisdiction. In re A.A.-F. …………………………………………………………… 125

Subject Matter Jurisdiction—Appellate Review. Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and parties cannot convey subject matter jurisdiction on a court by failing to object to the court's lack of jurisdiction. Via Christi Hospitals Wichita v. Kan-Pak ………….……………....… 883*

— — Subject-matter jurisdiction raises a question of law subject to unlimited review. In re A.A.-F. ……………………………………………..... 125

— Via Christi Hospitals Wichita v. Kan-Pak …………………………883*

Supreme Court Has Jurisdiction under Kansas Constitution. Under the Kansas Constitution, the Supreme Court shall have such appellate jurisdiction as provided by law. GFTLenexa, LLC v. City of Lenexa …………. 976*

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MOTOR VEHICLES:

Burden of Proof on Motorist if Inability to Complete Breath Test. Un- der K.S.A. 2014 Supp. 8-1001(q), a motorist has the burden to prove that his or her inability to successfully complete a post-DUI breath test was due to a medical condition that was not caused by alcohol or drugs. Creecy v. Kansas Dept. of Revenue ………………………………….… 454

Driver's License Suspension—Compliance with Personal Service Re- quirement of Statute by Law Enforcement Officer. A law enforcement officer who personally hands a form DC-27 notice of suspension of driving privileges to a motorist that failed to complete a breath test, who permits the motorist to read the form, and who subsequently places the form with the motorist's other property has complied with the personal service requirement of K.S.A. 2014 Supp. 8-1002(c). Meats v. Kansas Dept. of Revenue …………………………………..… 447

— Creecy v. Kansas Dept. of Revenue ……….……………………..… 454

Driver's License Suspension—Judicial Review—Consideration of Post- Driving Alcohol Consumption by Officer Required. Under the facts and circumstances of this case, the district court erred in giving post-driving alcohol consumption evidence controlling weight on the issue of whether the officer had reasonable grounds to request a breath test. The officer did not ignore or maintain a posture of willful ignorance toward evidence suggesting the possibility of post-driving alcohol consumption. Rosendahl v. Kansas Dept. of Revenue ……………………………..…. 474

Driver's License Suspension or Revocation—Fee Assessed by Statute Facially Unconstitutional. The $50 fee assessed under K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face because it requires a payment of a fee, without provision for indigency, before a motorist can obtain procedural due process to which he or she is entitled before a driver's license is suspended or revoked. Meats v. Kansas Dept. of Revenue …………….. 447

— Creecy v. Kansas Dept. of Revenue ……….…………….……….… 454

— Rosendahl v. Kansas Dept. of Revenue ……….………………….… 474

Driving while Legally Impaired—Probable Cause Factors. Unsafe driving and the odor of alcohol can each suggest a person was driving while legally impaired and contribute to a finding of probable cause. State v. Chavez-Majors ………………………………………..…… 1048*

Implied Consent Advisory Complies with Statutory Notice Require- ments. An implied consent advisory that mirrors statutory language is legally sufficient to advise a motorist of the consequences of failing to submit to a postarrest breath test. Meats v. Kansas Dept. of Revenue …………. 447

— Creecy v. Kansas Dept. of Revenue ……….……………………..… 454

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No Right to Driver's License—Procedural Due Process Required if Li- cense Suspended or Revoked. A person does not have a right to a driver's license, but once he or she has a license, the person is entitled to procedural due process before the license is suspended or revoked. Creecy v. Kansas Dept. of Revenue ……………………………………. 454

Term "Evidentiary Test" in Implied Consent Advisory Complies with Statutory Notice Requirements. The term "evidentiary test" is sufficient to distinguish a postarrest breath test from a preliminary breath test; an implied consent advisory that uses the term "evidentiary test" sufficiently complies with statutory notice requirements. Meats v. Kansas Dept. of Revenue …………………………………….. 447

— Creecy v. Kansas Dept. of Revenue ……….……………….…….… 454

NEGLIGENCE:

Existence of Duty—Question of Law. Whether a duty exists is a question of law. Williams v. C-U-Out Bail Bonds …………………………..….. 775*

OIL AND GAS:

Retention of Mineral Interest by Grantor—Not Subject to Rule against Perpetuities. When a grantor of real property retains a defeasible term- plus-production mineral interest by exception in the deed of conveyance, thereby conveying to the grantee a future interest in the mineral interest, that conveyance of a future interest is not subject to the common-law rule against perpetuities. Jason Oil Company v. Littler ………….………… 376

Utility Not Subject to Common-law Rule of Capture Once KCC or FERC Approve Its Certification. Once the Kansas Corporation Commis- sion or Federal Energy Regulatory Commission approves its certification, a natural gas public utility's identifiable non-native storage gas lying underneath a natural gas storage facility's certificated boundaries is no longer subject to the common-law rule of capture—even if the utility has not yet ac- quired storage rights through eminent domain or contract. Northern Natural Gas Co. v. ONEOK Field Services Co. …………..... 644

PARENT AND CHILD:

Child Custody—Home State Has Jurisdiction unless UCCJEA Limits Jurisdiction. Once a home state exercises jurisdiction over a child-custody proceeding, it generally has exclusive, continuing jurisdiction until a court makes findings that fall within a UCCJEA provision recognizing certain circumstances under which a different court may exercise jurisdiction. In re A.A.-F. …………………………………………………………… 125

Due Process of Law Violation. The failure to follow a statutorily required procedure does not inevitably result in a due process violation. In re A.A.-F. …………………………………………………………… 125

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Fundamental Liberty Interest Regarding Children. Parents have a fundamental liberty interest in the right to make decisions regarding the care, custody, and control of their children. In re A.A.-F. ………..………… 125

Parent Entitled to Due Process of Law Regarding Care of Children. The State's interest in a child's welfare may be asserted through state pro- cesses designed to protect children in need of care. But before a parent can be deprived of his or her right to the custody, care, and control of his or her child, the parent is entitled to due process of law. One of the fundamental requirements of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In re A.A.-F. ……………….……… 125

Revised Kansas Code for Care of Children Confers Jurisdiction to Kansas Courts—Subject to UCCJEA. The Revised Kansas Code for Care of Children, through K.S.A. 2018 Supp. 38-2203, generally confers original jurisdiction on Kansas courts to hold proceedings concerning any child who may be a child in need of care. But the Legislature placed limits on this jurisdiction, making it subject to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 2018 Supp. 23-37,101 et seq. In re A.A.-F. …………………………………………………………… 125

Uniform Child Custody Jurisdiction and Enforcement Act—"Home State" Definition under Act. The UCCJEA's drafters prioritized the jurisdictional grounds to help assure that only one state at a time exercises jurisdiction, thus avoiding conflicting orders. Courts in the child's "home state" have the highest and first priority. The term "home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before commencement of a child-custody proceeding." In re A.A.-F. ……………………………… 125

PROBATE CODE:

File Will within Six Months from Death of Testator—Statute of Limi- tations. In order to commence an action in probate regarding the contents of a will, a petitioner must file the will with the court and commence the action within six months after the death of the testator. This functions as a statute of limitations. In re Estate of Oroke ………………………….... 305

Six-Month Limitation Period to File Will—Knowing Withholding of Will Is Exception to Time Limit. K.S.A. 59-618 provides for an exception to the six-month limitation period when someone who knows where a will is located knowingly withholds it from the court. In re Estate of Oroke …………………………………………………... 305

PRODUCT LIABILITY:

KPLA Codifies Common-Law Economic Doctrine. The Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq., codifies a modified version of the common-law economic loss doctrine. In a product liability cause of action, the KPLA excludes recovery of damages for any "direct or consequential economic loss" but permits a plaintiff to recover damages for any

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damage to property. K.S.A. 60-3302(d). This includes damage to the product itself. Corvias Military Living, LLC v. Ventamatic, Ltd. ………….. 824*

KPLA Excludes Claim to Recover Direct or Consequential Economic Loss. Because the KPLA excludes from the scope of a product liability cause of action any claim to recover direct or consequential economic loss, the KPLA does not subsume or extinguish any legally viable alternative cause of action seeking recovery for direct or consequential economic loss. Corvias Miliaiitary Living, LLC v. Ventamatic, Ltd. …………………. 824*

SEARCH AND SEIZURE:

Application of Attenuation Doctrine—Three Nonexclusive Factors for Determination. The United States Supreme Court has identified three nonexclusive factors for determining whether the attenuation doctrine applies. First, courts look to the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional seizure. Second, courts consider intervening circumstances. Third, and particularly significant, a court examines the purpose and flagrancy of the official misconduct. No one factor is controlling, and other factors also may be relevant to the attenuation analysis. State v. Christian ……………………………………..……… 229

— State v. Tatro ………………………………………….………….… 263

— State v. Sanders ……………………………………….………….… 279

Attenuation Doctrine—Discovery of Arrest Warrant after Search Not an Intervening Circumstance. An arrest warrant discovered after a search does not intervene in the causal chain between the constitutional violation and the discovery of evidence. It thus is not an intervening circumstance for purposes of the attenuation doctrine analysis. State v. Sanders ………. 279

— Discovery of Arrest Warrant an Intervening Circumstance— Strongly Favors the State. Under Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016), a valid, preexisting, and untainted arrest warrant is an intervening factor that strongly favors the State. This holding abrogates that portion of State v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090 (2013), holding the discovery of a preexisting warrant carries little weight when applying the attenuation doctrine. It does not abrogate other portions of Moralez. State v. Tatro ………………………….…………. 263

— State v. Sanders ……………………………………….………….… 279

— Temporal Proximity Factor. Under the attenuation doctrine's temporal proximity factor, a finding of attenuation is not generally appropriate unless substantial time elapses between an unlawful act and when a law enforcement officer obtains the evidence. State v. Christian ……………..…… 229

— State v. Tatro ………………………………………….………….… 263

— State v. Sanders ……………………………………….………….… 279

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Burden of Proof on State—Lawfulness of Search and Seizure. The State bears the burden of proving the lawfulness of its search and seizure. State v. Sanders ………………………………………………………... 279

Exception to Warrant Requirement—Brief Detention if Reasonable Suspension of Crime. One exception to the warrant requirement allows an officer to stop and briefly detain an individual without a warrant when the officer has an articulable and reasonable suspicion, based in fact, that the detained person is committing, has committed, or is about to commit a crime. State v. Sanders ………………………………………………… 279

— Reasonable Suspicion to Detain Individual. To have reasonable suspicion to detain an individual, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The suspicion must have a particularized and objective basis and be something more than a suspicion or hunch. State v. Sanders …………………………………………...… 279

Exclusionary Rule—Application of Good-Faith Exception. The good- faith exception to the exclusionary rule as discussed in Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), applies when an officer reasonably relies upon a statute to make a search and the statute is later deemed unconstitutional. Reliance upon a statute is not reasonable if the provisions of a statute are such that a reasonable officer should have known that the statute was unconstitutional. State v. Perkins ………….. 764

Illegal Detention—Application of Third Attenuation Factor—Consid- erations by Courts. Whether the third attenuation factor of purposeful or flagrant misconduct weighs in favor of suppression turns on multiple considerations, including whether the officer acted in good faith, committed multiple unconstitutional acts following the unconstitutional seizure, or acted as part of a systemic and recurrent pattern of police misconduct. As to the factor of good faith, the officer's subjective state of mind weighs heavily. Courts should generally find purposeful and flagrant misconduct if: (1) the impropriety of the official's misconduct was obvious or the official knew, at the time, that his or her conduct was likely unconstitutional but still engaged in it; and (2) the misconduct was investigatory in design and purpose and executed in the hope that something might turn up. State v. Christian …………………………...…………………..……… 229

— State v. Tatro ………………………………………….………….… 263

— State v. Sanders ……………………………………….………….… 279

— Evidence Seized Through Illegal Action of Police Officer—Develop- ment of Probable Cause Not Intervening Circumstance. Development of probable cause to arrest based on a police officer's discovery of evidence of a crime after the officer has illegally detained an individual does not attenuate the taint of an illegal seizure and allow admission of evidence obtained in a later search. The probable cause flows directly from the unlawful

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seizure and does not break the causal connection between the Fourth Amend- ment violation and the search. It is not, therefore, an intervening circumstance. State v. Christian ………………………………………………………. 229

Officer's Reliance on K.S.A. 2012 Supp. 8-1025 Reasonable in This Case. In this case, a law enforcement officer's reliance on K.S.A. 2012 Supp. 8-1025 was reasonable because the officer could not have reasonably been expected to have known that the statute would later be found unconstitutional and the officer followed the law as it existed at the time. State v. Perkins …………….. 764

Warrantless Blood Draw—Exigency Not Established by Natural Dissi- pation of Alcohol in Blood. The natural dissipation of alcohol in the blood does not establish exigency per se. State v. Chavez-Majors ……….... 1048*

— Three-Prong Test for Determination if Meets Exception to Warrant Requirement. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) established a three-prong test for fitting a warrantless blood draw into the probable cause plus exigent circumstances exception to the warrant requirement: (1) there must be exigent circumstances that justify the taking of the blood sample; (2) there must be probable cause to believe the defendant has been driving while legally impaired; and (3) the procedure used to extract blood must be reasonable. State v. Chavez-Majors ………………………………………..……. 1048*

SECURITIES:

Definition of "Offer to Sell" under KUSA. The KUSA defines "offer to sell" more broadly than that concept is understood in contract law or under the Uniform Commercial Code. An offer to sell a security can occur only once or multiple times in the sales or negotiation process or in a way where more than one offer is extended during the sales process of a single security. State v. Lundberg ………………….………………………………….. 165

Jurisdiction under KUSA if Offer or Sale Occurs in the State. Jurisdic- tion arises under the KUSA only if an offer or sale occurred in the state— not only because the transaction has some sort of nexus to the state. State v. Lundberg ………………….………………………………….. 165

Kansas Securities Act—Jurisdiction Over Sales of Securities in Kansas. As provided in K.S.A. 17-12a610(a), Kansas has jurisdiction under the Kan- sas Uniform Securities Act (KUSA), K.S.A. 17-12a101 et seq., to prosecute a defendant for acts related to the sale of a security only if the offer to sell or the sale was made in Kansas. State v. Lundberg …………………….. 165

"Offer to Sell" under KUSA Limits Jurisdiction to Territorial Bound- aries of Kansas. Even under the expansive reading permitted by the definition of "offer to sell" in the KUSA, Kansas' jurisdiction is statutorily limited to situations in which the offer originates within the territorial boundaries of Kansas. This is true no matter whether the offer to sell is an attempt

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or a solicitation, no matter how early in the process it occurs, and no matter whether it is just one of several steps. State v. Lundberg ………….….. 165

Sale of Security—Jurisdiction under KUSA. Sales of a security can involve a continuing process, including steps such as paying consideration, notifying the purchaser the offer has been accepted, and delivering the security. If any step occurs in Kansas, Kansas has jurisdiction under the KUSA. State v. Lundberg ……………………………………..……….. 165

STATUTES:

Construction—K.S.A. 22-3717(d)(1) Is Not Ambiguous. Construing the statute as a whole and giving effect to all of the subsections, there is no conflict or ambiguity in K.S.A. 22-3717(d)(1). State v. Carpenter …………………. 945*

K.S.A. 2012 Supp. 8-1025 Provisions That Criminalize Withdrawal of Consent to BAC Test Held Unconstitutional—Implied Consent Stat- utes Still Valid. The Legislature did not wholly abandon its duty to pass constitutional laws when it passed K.S.A. 2012 Supp. 8-1025; this court has held that the provisions of K.S.A. 2012 Supp. 8-1025 that criminalize withdrawal of consent to submit to a blood alcohol content test are unconstitutional, but the entire implied consent statutory scheme has not been invali- dated. State v. Perkins ……………………………………...………… 764

Portion of K.S.A. 2018 Supp. 21-5415(a)(1) Held Unconstitutionally Over- broad. The portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear is unconstitutionally overbroad because it punishes conduct that may be constitutionally protected under some circumstances. State v. Boettger …. 800*

Provision in K.S.A. 2018 Supp. 21-5415(a)(1) Held Unconstitutionally Overbroad. The provision in K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad because it punishes conduct that is constitutionally protected under some circumstances. State v. Johnson ...... 835*

SUMMARY JUDGMENT:

Court's Determination of State of Mind of Parties. A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue requires it to determine the state of mind of one or both of the parties. Hill v. State ……………………………………………..... 490

TORTS:

Kansas Tort Claims Act—Discretionary Function Exception Inappli- cable if Duty or Guideline Exists. If a clearly defined mandatory duty or guideline exists, the discretionary function exception of the Kansas Tort Claims Act is inapplicable. Hill v. State ……………………………… 490

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— Liability of Governmental Entity—Requirements. The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that a governmental entity can be found liable for the negligent or wrongful act or omission of any employee while acting within the scope of employment if (a) a private person could be liable under the same circumstances, and (b) no statutory exception to liability applies. Hill v. Sate ……………………………………….. 490

Kansas Tort Claims Act—Governmental Liability Is the Rule—In This Case No Discretionary Function Immunity. Liability is the rule, and immunity is the exception for governmental entities sued under the Kansas Tort Claims Act. In this case, once police had undertaken a duty owed to the plaintiffs their decision to discontinue an investigation of bail bondsmen's potentially illegal conduct was not protected by discretionary function immunity. Williams v. C-U-Out Bail Bonds ………………..…… 775*

Public Duty Doctrine—Facts Supported Police Undertaking of Duty to Individual Plaintiffs in This Case. The mere fact that a governmental entity owes a legal duty to the public at large does not establish that the governmental entity owes a duty to an individual member of the public. How- ever, in this case, the amended petition alleged sufficient facts to support a police undertaking of a duty owed to the individual plaintiffs under Restate- ment (Second) of Torts § 323 to completely investigate bail bondsmen's forced entry into the plaintiffs' home. Williams v. C-U-Out Bail Bonds …………………………….……….. 775*

Retaliation Claim—Applicability of Kansas Judicial Review Act. The Kansas Judicial Review Act, K.S.A. 77-601 et seq., does not apply to the civil tort of retaliatory job action against an administrative agency. Hill v. State …………………………………………………………… 490

Retaliatory Job Action May Include Civil Service Employer's Act. An actionable retaliatory job action can include a civil service employer's act that is materially adverse to a reasonable civil service employee, i.e., harmful to the point it could dissuade a reasonable employee from exercising the employee's rights under the Civil Service Act. Hill v. Sate ………….. 490

Tort of Retaliatory Job Action Recognized in Kansas—Civil Service Act's Appeal Procedure. Kansas law recognizes the tort of retaliatory job action when a civil service employee is disciplined or discriminated against in any way because of the employee's proper use of the Civil Service Act's appeal procedure. Hill v. State ………………………………..……….490

TRIAL:

Defendant Stipulates to Element of Crime—Jury Trial Waiver of Stip- ulated Element Required. When a defendant stipulates to an element of a crime, the defendant has effectively waived his or her right to a jury determination of that element. Thus, a valid jury trial waiver—limited to the stipulated element or elements—is required. State v. Johnson …………... 909*

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Evidence—Exclusion of Relevant Evidence Is Extraordinary Remedy. Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly. State v. Ross ………………………………...………… 216

Expert Witness—Qualifications. It is not necessary that an expert witness demonstrate expertise in every theory, principle, or scientific discipline underlying the knowledge, skill, experience, training, or education that may qualify an expert witness to give testimony. State v. Claerhout ……… 924*

Judicial Comment Error—Appellate Review. Judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial. State v. Boothby …………………………………………….…… 619

— Harmlessness Analysis Applies. An erroneous judicial comment made in front of the jury that is not a jury instruction or legal ruling will, from now on, be reviewed as "judicial comment error" under the constitutional harmlessness test from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Thus, the State, as the party benefitting from judicial comment error, has the burden to prove beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., prove "there is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). State v. Boothby …………………………………………………….… 619

Juror Misconduct Allegations—Two-Step Inquiry. Allegations of juror misconduct trigger a progressive two-step inquiry to determine if either a mistrial or new trial is warranted: (1) whether juror misconduct occurred, and (2) if so, whether the misconduct substantially prejudiced the right to a fair trial, meaning whether the State can show beyond a reasonable doubt that the misconduct did not affect the trial's outcome. State v. Hirsh ….. 321

Jury Instruction—Conspiracy Statute. A jury instruction listing more than one overt act in furtherance of a conspiracy does not create alternative means. Instead, such an instruction merely describes the factual scenarios that could prove the material element of an overt act. State v. Cottrell ………………………………………………………... 150

— Jury's Power of Nullification. The jury instruction, "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions," is legally correct and does not prevent a jury from exercising its power of nullification. State v. Toothman ………..…………….….. 542

— Lesser Included Instructions—Preservation of Issue for Appeal. When a criminal defendant makes his or her position on lesser included crime instructions clear at an instructions conference with the trial judge, thus giving the judge an opportunity to avoid or correct alleged instruction error, the defendant has preserved the instruction issue for later appeal, even if no defense objection is lodged when the instructions are read or given to the jury. State v. Perez-Medina ……………………………...…….….. 525

LIV SUBJECT INDEX 310 KAN.

PAGE

Jury Instructions—Appellate Review. A district court does not err when it tells a jury to follow the law. State v. Boothby ……………………… 619

— Failure to Instruct on Second-Degree Murder and Reckless Invol- untary Manslaughter—Not Reversible under Clear Error Standard. Even if the district judge's failure to instruct sua sponte on reckless second- degree murder and reckless involuntary manslaughter in this case is assumed to be error, the error is not reversible under a clear error standard, when there was overwhelming evidence that whoever shot the victim to death did so by firing a shotgun loaded with triple-aught buck from close range after lying in wait for about 10 minutes, and strong evidence demonstrates that the person who shot the victim was the defendant. State v. Pruitt ………………………………………………...………. 952*

— In This Case No Error in Instructions. A district judge's instructions to the jury, (a) "Such law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be"; (b) "At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict"; and (c) "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them," are correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019). They do not direct a verdict of conviction or prevent a jury from exercising its power of nullification. State v. Pruitt ……………………………... 952*

No Jury Misconduct—Voir Dire Questions. Jury misconduct does not occur when venire members do not respond to questions never asked during voir dire. State v. Hirsh ……………………………………..…………. 321

No Structural Error under These Facts—No Automatic Reversal. An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal. State v. Johnson ………………………….……… 909*

Question Regarding Jury Misconduct—No Abuse of Discretion by Dis- trict Judge in This Case. The district judge in this case did not abuse his discretion in finding that no fundamental failure due to jury misconduct occurred in the trial of the defendant's case. The judge was able to observe the defendant's daughter, who testified about observing a juror sleeping, and evidently made a negative credibility judgment. The judge also made a careful record of other, unrelated trial participants' recollections, including his court reporter's and his own; and those recollections did not match that of the defendant's daughter. State v. Pruitt …………………...…………. 952*

310 KAN. SUBJECT INDEX LV

PAGE

Statements of Prosecutor—In This Case Not Misstatement of Law. Prosecutor's statement, "Folks, if you're convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged," was not an impermissible misstatement of the law because it forbade jury nullification. State v. Pruitt ……….………………………………………………... 952*

— No Reversal of Conviction Required in This Case. Prosecutor's statement in summing up testimony about alleged murder weapon, "This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point," was an impermissible personal opinion; but it does not require reversal of the defendant's premeditated first-degree murder conviction. State v. Pruitt …………………………………………………..…….. 952*

Statements of Prosecutor Regarding Victim—In This Case Not Error. Prosecutor's statement that the victim deserved jurors' "consideration" was not error, when the context of the statement demonstrates that the prosecutor was not attempting to invoke the jury's sympathy. State v. Pruitt …….. 952*

Testimony of Noninformant Witness—Jury Instruction Not Required. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is testifying in exchange for benefits from the State. State v. Dean …………………………….. 848*

WILLS:

Custodianship of Will by District Court Clerk—When Statute of Lim- itations Tolled. When a district court clerk is entrusted with the custodianship of a will but is unable to produce the will in time for a party to file a timely petition to probate the will, the statute of limitations may be tolled so long as the rights of the parties are not substantially impaired. In re Estate of Oroke …………………………………………………... 305

District Court Clerk's Statutory Duty to Maintain Wills. A district court clerk has a duty under Kansas statutes and a Kansas Supreme Court rule to maintain and make available wills that have been duly filed with the clerk of the district court. In re Estate of Oroke ……………………………… 305

Equitable Tolling of Statute of Limitations When Clerk of District Court Fails to Produce Will. Equitably tolling the statute of limitations provides a realistic and fair remedy for an unusual situation not contemplated by the statutory scheme. This is not a modification of In re Estate of Strader, 301 Kan. 50, 339 P.3d 769 (2014), but a holding limited to the unique and rare circumstances in this case of a clerk of the district court not following a duty imposed by law. In re Estate of Oroke ………………. 305

Testamentary Capacity—Burden of Proof. The burden is on a party con- testing the presumptive validity of a testamentary document to prove lack of testamentary capacity through clear and convincing evidence. In re Estate of Moore ……………………………………………….… 557

LVI SUBJECT INDEX 310 KAN.

PAGE

— Requirements. Testamentary capacity requires a basic understanding of the property at issue and how the testator wishes to dispose of it. In re Estate of Moore ………………………………………….……..… 557

WORKERS COMPENSATION:

Fee Schedule Created by Statute Upheld under Facts of This Case. Un- der the facts of this case, the Workers Compensation Appeals Board's enforcement of the plain language of the fee schedule created under the director of workers compensation's statutory authority was not unreasonable, arbitrary, or capricious under K.S.A. 2018 Supp. 77-621(c)(8). Via Christi Hospitals Wichita v. Kan-Pak ……………………………. 883*

VOL. 310 SUPREME COURT OF KANSAS 775

Williams v. C-U-Out Bail Bonds

No. 116,883

JOEANN WILLIAMS, ERIC WILLIAMS, HAZEL S. NOBLE, W.J.W., and L.L.W., Appellants, v. C-U-OUT BAIL BONDS, LLC, Defendant, and CITY OF OVERLAND PARK, KANSAS, ex rel. OVERLAND PARK POLICE DEPT., Appellee.

___

SYLLABUS BY THE COURT

1. CIVIL PROCEDURE—Motion to Dismiss for Failure to State Claim—Ap- pellate Review. Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review.

2. APPEAL AND ERROR—District Court's Grant of Motion to Dismiss— Appellate Review. An appellate court reviewing a district court's decision to grant a motion to dismiss will assume as true the well-pleaded facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, dismissal is improper.

3. CIVIL PROCEDURE—Motion to Dismiss—Amended Petition's Allega- tions in This Case Not Bare Legal Conclusions. A pleading's bare legal conclusions need not be credited absolutely in the same way that the plaintiffs' factual allegations must be when a judge rules on a motion to dismiss. But, in this case, the amended petition's allegations that bail bondsmen intended to enter the plaintiffs' home without legal authority and that police officers left the scene with full knowledge of the bondsmen's illegal conduct were not bare legal conclusions.

4. NEGLIGENCE—Existence of Duty—Question of Law. Whether a duty exists is a question of law.

5. TORTS—Public Duty Doctrine—Facts Supported Police Undertaking of Duty to Individual Plaintiffs in This Case. The mere fact that a governmental entity owes a legal duty to the public at large does not establish that the governmental entity owes a duty to an individual member of the public. However, in this case, the amended petition alleged sufficient facts to support a police undertaking of a duty owed to the individual plaintiffs under Restatement (Second) of Torts § 323 to completely investigate bail bondsmen's forced entry into the plaintiffs' home.

6. APPEAL AND ERROR—Governmental Immunity from Tort—Appellate Review. Whether a governmental entity is immune from liability under an exception in the Kansas Tort Claims Act is a matter of law. Accordingly, appellate review is de novo.

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Williams v. C-U-Out Bail Bonds

7. TORTS—Kansas Tort Claims Act—Governmental Liability Is the Rule—In This Case No Discretionary Function Immunity. Liability is the rule, and immunity is the exception for governmental entities sued under the Kansas Tort Claims Act. In this case, once police had undertaken a duty owed to the plaintiffs their decision to discontinue an investigation of bail bondsmen's potentially illegal conduct was not protected by discretionary function immunity.

Review of the judgment of the Court of Appeals in 54. Kan. App. 2d 600, 402 P.3d 558 (2017). Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed October 11, 2019. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded to the district court for further proceedings.

Curtis N. Holmes, of Holmes Law Office, LLC, of Olathe, was on the brief for appellants.

Michael K. Seck, of Fisher, Patterson, Sayler & Smith, LLP, of Overland Park, was on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This appeal concerns whether a police duty to investigate bail bondsmen's entry into a private home arose and, if so, whether the City of Overland Park is immune from any liability for police officers' breach of the duty. Those present in the home at the time the bail bondsmen forced their way inside sued the bondsmen's company, C-U-Out Bail Bonds, LLC, and the City on a variety of claims. A district court judge dismissed the City as a defendant, ruling the plaintiffs failed to state a valid cause of action. A Court of Appeals panel affirmed, and this court granted the plaintiffs' petition for review. We conclude today that the plaintiffs' amended petition alleged sufficient facts to support (a) potential intentional illegal conduct on the part of the bail bondsmen, (b) a police undertaking of a duty to investigate owed to the plaintiffs individually, and (c) no discretionary function immunity for the City under the Kansas Tort Claims Act (KTCA).

FACTUAL AND PROCEDURAL BACKGROUND

Agents of C-U-Out came to the home of JoeAnn and Eric Wil- liams at about 11 p.m. in search of Rickesha Wright, the Williamses' daughter-in-law. JoeAnn; Eric; Hazel Noble, JoeAnn's 90-year-old

VOL. 310 SUPREME COURT OF KANSAS 777

Williams v. C-U-Out Bail Bonds mother; and two of JoeAnn's grandchildren were in the home at the time. The agents' entry into the home became the subject of this lawsuit brought by the home's occupants. The plaintiffs' amended petition alleged:

"XI.

"The instant causes of action arise[] from the conduct of agents and/or employees of the above-named Defendants while acting within the course and scope of their employment.

"XII.

"At approximately 11:00 o'clock p.m., on the evening of Wednesday, Au- gust 6th, 2014, several armed representatives of Defendant, C-U-Out, arrived at a single family residence occupied at the time by all of the above-named Plain- tiffs. Upon information and belief, Plaintiffs allege that the representatives of C- U-Out were attempting to locate an individual by the name of Rickesha Wright (hereinafter 'Ms. Wright'), the daughter-in-law of the first and second named Plaintiffs herein. According to the representatives of C-U-Out, Ms. Wright was a criminal defendant who had been released on bond and had absconded from the law, and as a result of which her surety bond[,] which had been paid by C-U- Out[,] was in jeopardy of being revoked.

"XIII.

"The representatives of C-U-Out knocked at the door and were met by Plaintiff, JoeAnn Williams (hereinafter 'Ms. Williams'), who answered the door. The representatives inquired as to whether Ms. Wright was present, at which point Ms. Williams informed them that Ms. Wright was not at the house.

"XIV.

"The representatives of C-U-Out then asked to enter the residence to verify that Ms. Wright was not present, at which point Ms. Williams reiterated that Ms. Wright was not at the home and told them that they could not enter. She also informed them that she was caring for her elderly mother who was inside the home suffering from the effects of Alzheimer's Disease.

"XV.

"Ms. Williams closed the door and returned to care for her mother at which time the representatives of C-U-Out began an attempt to force the door open with a steel battering ram.

"XVI.

"Ms. Williams then returned to the front door and told the representatives of C-U-Out again that Ms. Wright was not present, that they were frightening

778 SUPREME COURT OF KANSAS VOL. 310

Williams v. C-U-Out Bail Bonds everyone inside the home, and that she intended to call the police. Whereupon one of the representatives of C-U-Out put his foot in the door, informed Ms. Williams that she would be charged with aiding and abetting a felon if she continued to refuse to let them in, and when Ms. Williams' dog started barking at the representative, he put his hand on his gun as if preparing to shoot the dog.

"XVII.

"While holding the door against the representative's foot, Ms. Williams called the Overland Park Police Department and uniformed officers of the Over- land Park Police Department arrived a few minutes later.

"XVIII.

"While two (2) of the representatives of C-U-Out remained at the front porch attempting to force the front door of the residence open, another of the representatives momentarily left to speak with the police officers who were just beyond the curtilage of the home. At that moment, representatives of C-U-Out who had been standing on the front porch forcibly entered the residence, pushing Ms. Williams backwards. Throughout this incident, the police officers remained outside their patrol unit and observed the forcible entry without taking any action. After the representatives of C-U-Out had forced their way into the home, Ms. Williams called out to the police officers for assistance.

"XIX.

"In response, the officers told Ms. Williams that this was outside of their jurisdiction and that they could do nothing about it and proceeded to withdraw from the scene, leaving Plaintiffs alone and at the mercy of the armed representatives of C-U-Out.

"XX.

"Shortly after the police officers had left the scene, the representatives of C-U-Out proceeded to search the residence going so far as to enter the private bedroom of Ms. William[s'] ninety (90) year-old mother, Plaintiff, Hazel S. No- ble, who was in bed, and the private bedrooms of Ms. Williams' grandchildren, Plaintiffs W.J.W. and L.L.W. who were also present.

"XXI.

"After failing to locate Ms. Wright, the representatives of C-U-Out then left the home threatening Plaintiffs that they would return and do another search until they found her.

"XXII.

"The representatives had no personal knowledge that Ms. Wright was or even had been at the home, and, in fact, Ms. Wright was never at the home at the time of the above-described incident, nor was there any available evidence at the time to suggest that she was."

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Williams v. C-U-Out Bail Bonds

The plaintiffs' only claim against the City was labeled "negligent failure to protect." It formed Count III of the amended petition and stated:

"XXXIII.

"Plaintiffs allege that at all times material hereto, the officers of the Over- land Park Police Department and by extension, the City of Overland Park, under the doctrine of Respondeat Superior had an affirmative obligation and duty to protect persons within the jurisdictional limits of the City of Overland Park.

"XXXIV.

"Plaintiffs further allege that the incident described above took place within the jurisdictional limits of the City of Overland Park.

"XXXV.

"Plaintiffs further allege that the police officers who were present at the home of Plaintiffs at the time of the incident described above were personally aware of the facts and circumstances which led to the incident, and had been called to the scene to protect the peace.

"XXXVI.

"Plaintiffs further allege that once the officers were notified of the call, affirmatively responded to the call, presented themselves at the scene, and were made aware of the circumstances as previously described herein, they had an affirmative duty to remain at the scene in order to protect Plaintiffs until the dangers associated with the confrontation between Plaintiffs and armed representatives of Defendant, C-U-Out who were then attempting forcibly to enter Plain- tiffs' private residence had passed.

"XXXVII.

"The officers of the Overland Park Police Department violated their affirmative duty to protect Plaintiffs when they left the vicinity of Plaintiffs' home after having been called to and appearing at the scene with full knowledge that there were armed representatives of a bonding company who had expressed their intention of forcibly entering the private residence without the permission of the occupants and without legal authority, and had actually forcibly entered the residence without the permission of the occupants and without legal authority.

"XXXVIII.

"As a proximate result of the breach of the duty of the officers of the Over- land Park Police Department, the representatives of C-U-Out were permitted forcibly to enter the private residence of Plaintiffs without privilege or legal author-

780 SUPREME COURT OF KANSAS VOL. 310

Williams v. C-U-Out Bail Bonds ity and to invade the privacy of Plaintiffs. In so doing, the officers of the Over- land Park Police Department failed to protect the rights of Plaintiffs in violation of their duty to do so.

"XXXIX.

"Plaintiffs further allege that the foregoing incident was subject to an internal investigation conducted by the Office of Professional Standards of the Over- land Park Police Department and was found to be substantiated.

"XL.

"Pursuant to the Kansas Tort Claims Act, Plaintiffs thereafter filed a Notice of Tort Claim with the City of Overland Park more than ONE HUNDRED TWENTY (120) days prior to the filing of the instant Amended Petition to which there has been no response by Defendant, City of Overland Park, as of the current date.

"XLI.

"As a result of the foregoing, Plaintiffs have suffered damages and are entitled to all remedies permitted at law therefor."

The parties agree that the City filed a motion to dismiss, but the motion does not appear in the record on appeal. The plaintiffs' response, which is in the record, says the City sought dismissal under K.S.A. 2016 Supp. 60-212(b)(6) because "the City owed no duty to Plaintiffs which was breached, and that the City is immune from liability pursuant to K.S.A. § 75-6104(c) and (e)." The plaintiffs acknowledged in their response that law enforcement officers generally owe a duty only to the public at large and not to particular individuals. Despite this general rule, referred to as the public duty doctrine, the plaintiffs argued that law enforcement officers can owe a special duty to victims of criminal acts. Citing Lovitt v. Board of Shawnee County Comm'rs, 43 Kan. App. 2d 4, 221 P.3d 107 (2009), they said that "[a] special duty arises when the government agency perform[s] an affirmative act or ma[kes] a representation that under the circumstances create[s] a justifiable reliance on the part of the person injured." On immunity, the plaintiffs noted the City had not "provided [any] authority to suggest that law enforcement ever acts within its sound discretion when it allows for the commission of a serious

VOL. 310 SUPREME COURT OF KANSAS 781

Williams v. C-U-Out Bail Bonds crime in its very presence to which it has been called to respond and possesses the capacity to prevent." The City apparently filed a reply in support of its motion, but, again, it is not included in the record on appeal. The district judge granted the City's motion.

"In the Amended Petition, the Plaintiffs have alleged that the City's Police Department was called to assist them in stopping a trespass upon their property, unlawful entry into the home and, possibly, an assault with a firearm or [at] least a threat to unlawfully discharge the firearm and damage the property of the Plain- tiffs. Police Officers were dispatched to the Plaintiffs' home, but they declined to intervene. The Plaintiffs['] home was invaded by agents of the co-Defendant, C- U-Out Bail Bonds, LLC, because the Police Officers refused to do their jobs in protecting Plaintiffs or enforcing the laws of this State. The agents of the bail bond company claimed to be searching for a fugitive who had absconded from the law. There is no indication that a warrant existed or that the police made any investigation to see whether a valid bench warrant existed or not. The City's Po- lice Officers did nothing to stop the invasion of the home or threats made by armed agents of the bail bond company. Police Officers left the area. The bail bond agents invaded the privacy of the home. No fugitive was found in the residence or immediate area of the Plaintiffs' home.

"Taking all of the allegations as true, the Court finds that Plaintiffs[] have failed to state a claim upon which relief can be granted. Further, the Police Of- ficers and thereby the City as their employer are immune from liability under the Kansas Tort Claims Act in the performance of their discretionary functions."

On the issue of KTCA immunity, the judge cited Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982), saying Rob- ertson made "clear that despite notice pleading it is incumbent upon the Plaintiffs to allege facts sufficient to remove the immunity." He concluded that the plaintiffs had failed to do so. On duty, the judge wrote:

"The instant case is unlike Jackson vs. City of Kansas City[, 263 Kan. 143, 162-63, 947 P.2d 31 (1997),] where the Police were under an affirmative duty to protect a prisoner in custody, handcuffed and seated on the sidewalk, from harm. Jackson's throat was cut when he was not protected from the person he had been accused of assaulting in a domestic disturbance. While the Police investigated, Jackson was handcuffed and unable to protect himself. The Court found a duty for the Police to protect those in custody from outside harm.

"There is no such affirmative duty under Kansas law shown by the Plaintiffs in this case."

782 SUPREME COURT OF KANSAS VOL. 310

Williams v. C-U-Out Bail Bonds

The plaintiffs appealed to the Court of Appeals, challenging the district judge's conclusions that the police owed them no duty and that the City was immune from suit under the KTCA discretionary function exception. For its part, the City asked the panel to apply a federal standard for determining whether to grant a motion to dismiss for failure to state a claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (pleading must "'contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action'"); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (federal courts must determine whether claim has "facial plausibility"). They also argued that the district court judge's reasoning and result on the two grounds for dismissal should be upheld. The panel declined the City's invitation to adopt the federal standard for reviewing a motion to dismiss for failure to state a claim. Under the governing Kansas standard, it acknowledged that it must consider all of the plaintiffs' well-pleaded facts as true, but it said "nothing requires us to treat the legal conclusions contained within the petition as also being true." Williams v. C-U-Out Bail Bonds, 54 Kan. App. 2d 600, 605, 402 P.3d 558 (2017). The panel specifically said it would disregard two such conclusions, "the truth of which the City has not admitted": "C-U-Out representatives intended to enter the house without legal authority" and "the police officers who responded to the call left with full knowledge that the bail bondsmen were attempting to enter the house illegally." 54 Kan. App. 2d at 605. The panel then cited two statutes and one case dealing with bail bondsmen and arrests without engaging in any meaningful analysis. See 54 Kan. App. 2d at 606 (citing K.S.A. 22-2809; K.S.A. 22-2405[3]; State v. Burhans, 277 Kan. 858, Syl. ¶ 2, 89 P.3d 629 [2004]). On the merits of the duty issue, the panel recited the public duty doctrine—"the general principle that a governmental agency owes duties to the public at large rather than to individuals." Wil- liams, 54 Kan. App. 2d at 607. To avoid application of the doctrine to bar the plaintiffs' claim against the City, the panel said, the plaintiffs must establish the existence of a special relationship between themselves and the police officers. Reviewing existing caselaw, the panel concluded the plaintiffs' pleadings did not meet

VOL. 310 SUPREME COURT OF KANSAS 783

Williams v. C-U-Out Bail Bonds this test. 54 Kan. App. 2d at 607-11. Like the district judge before it, the panel emphasized its understanding that the plaintiffs' claim was based on the officers' inaction after arriving at the Williams home.

"[T]he only affirmative act taken by the government employees—responding to a 911 call—was clearly within the officers' duties under statutes or agency regulations to preserve the peace and protect public rights. Failing to intervene is an omission or an inaction[,] which cannot reasonably be construed under our precedent as the performance of an affirmative act which could create the special relationship necessary to fall within the exception to the public duty doctrine. Nor did the officers' act of responding to the Plaintiffs' call for help, as they were duty-bound to do, arguably cause Plaintiffs any injury. Instead, according to the amended petition, it was the officers' failure to intervene that injured them. [Ci- tations omitted.]" 54 Kan. App. 2d at 611.

Although this holding that no duty arose could have ended the appeal, the panel nevertheless proceeded to discuss and rule upon the KTCA immunity issue as well. The panel identified the discretionary function exception to government liability under K.S.A. 2016 Supp. 75-6104(e) as the exception to be examined and noted that "no mandatory duty or guideline has been shown that would have governed the means by which the police officers investigated the situation," 54 Kan. App. 2d at 615, but it specifically focused on whether there was a requirement that officers arrest the C-U-Out agents. It concluded that "a plain reading of [the] statute authorizing law enforcement officers to make arrests supports the conclusion that the decision to make an arrest is discretionary," and thus the exception shielded the City from liability. 54 Kan. App. 2d at 615-16 (citing K.S.A. 22-2401). The plaintiffs petitioned this court for review on what they outlined as three issues: (1) whether the panel erred in concluding the plaintiffs failed to allege sufficient facts to support the conclusion that C-U-Out's agents lacked legal authority to invade the plaintiffs' home; (2) whether the panel erred in concluding the officers did not owe plaintiffs an individual duty; and (3) whether the panel erred in concluding that the officers and thus the City were immune under the KTCA. We granted review of all issues.

784 SUPREME COURT OF KANSAS VOL. 310

Williams v. C-U-Out Bail Bonds

DISCUSSION

"Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review." Cohen v. Battaglia, 296 Kan. 542, Syl. ¶ 1, 293 P.3d 752 (2013). Our traditional test for review of motions to dismiss is often stated and familiar:

"When a defendant uses [K.S.A. 60-212(b)(6)] to challenge the legal sufficiency of a claim, the court must decide the issue based only on the well-pled facts and allegations, which are generally drawn from the petition. Courts must resolve every factual dispute in the plaintiff's favor when determining whether the petition states any valid claim for relief. Dismissal is proper only when the allegations in the petition clearly demonstrate that the plaintiff does not have a claim. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001) (citing Ripley v. Tolbert, 260 Kan. 491, 493, 921 P.2d 1210 [1996], and Bruggeman v. Schimke, 239 Kan. 245, 247-48, 718 P.2d 635 [1986]). Likewise, appellate courts reviewing a district court's decision to grant a motion to dismiss will assume as true the well-pled facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, dismissal is improper. Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013)." Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc., 305 Kan. 761, 767-68, 388 P.3d 84 (2017).

Stated another way, if the facts alleged in plaintiffs' amended petition and the reasonable inferences arising from them stated a claim based on their theory "or any other possible theory," we must reverse the district court and the Court of Appeals. See Cohen, 296 Kan. 542, Syl. ¶ 2, 545-46. It is also important to remember that, "[b]ecause Kansas is a notice-pleading state, the petition is not intended to govern the entire course of the case." Berry v. National Medical Services, Inc., 292 Kan. 917, 918, 257 P.3d 287 (2011). "[T]he pretrial order is the ultimate determinant as to the legal issues and theories on which the case will be decided." Unruh v. Purina Mills, 289 Kan. 1185, 1191, 221 P.3d 1130 (2009). As noted above, the City urged the Court of Appeals to adopt and apply a federal standard for review of motions to dismiss that is more difficult for plaintiffs to meet than the traditional Kansas standard. Compare Twombly, 550 U.S. at 555 (pleading must "'contain something more . . . than . . . a statement of facts that

VOL. 310 SUPREME COURT OF KANSAS 785

Williams v. C-U-Out Bail Bonds merely creates a suspicion [of] a legally cognizable right of action'"), and Iqbal, 556 U.S. at 678 (federal courts must determine whether claim has "facial plausibility"), with Halley v. Barnabe, 271 Kan. 652, 655-57, 24 P.3d 140 (2001) (quoting Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231-32, 805 P.2d 1244, rev. denied 248 Kan. 996 [1991]) (Kansas courts have "sound reasons for exercising judicial skepticism towards dismissal of a petition for failure to state a claim prior to the completion of discovery"). The City did not favor the panel with any argument beyond an assertion of its druthers, and the panel did not do as it suggested. The City did not file a cross-petition for review on this point and did not even mention its preferred federal standard in its response to the plaintiffs' petition for review. We therefore do not reach the issue of whether Kansas courts should adopt and apply the federal standard in this case.

Sufficiency of Facts to Support Illegal Conduct

Plaintiffs first challenge the Court of Appeals panel's characterization of their allegations that C-U-Out agents intended to enter the house "without legal authority" and that the police officers left the scene with full knowledge that the bail bondsmen "were attempting to enter the house illegally" as bare legal conclusions unworthy of credit or consideration. Williams, 54 Kan. App. 2d at 605. The panel described the conclusions as unadmitted by the defendants and ruled that the amended petition omitted "the underlying factual allegations upon which such legal conclusions could arguably be built, such as whether Rickesha Wright resided at the Williams' house on the date the bail bondsmen invaded it or whether Wright had told the bail bondsmen that she did." 54 Kan. App. 2d at 605-06. Although we agree with the panel that a pleading's bare legal conclusions need not be credited absolutely in the same way that the plaintiffs' factual allegations must be when a judge rules on a motion to dismiss, we disagree with the panel that the two statements it referenced are bare legal allegations it was free to disregard. Indeed, the panel's observation that the City and C-U-Out had not admitted the agents intended to break the law or that the police officers knew of that intention is telling. The panel's need

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Williams v. C-U-Out Bail Bonds to mention the observation demonstrates that the existence of such an intention was a matter of fact, subject to later proof. Although the ultimate decision on whether the agents acted lawfully or unlawfully and what the agents and the police officers knew and when they knew it would certainly be measured against the content of the governing law, the content of the law alone could not settle the contested issue. Further complicating the question, we note that the governing law, despite the panel's intimations to the contrary, is not inevitably clear in Kansas. To begin with, the C-U-Out agents' authorization to force entry into a home to apprehend a person in Wright's position has three possible sources: common-law privilege; statutory provisions; and contract, that is, the bond agreement between Wright and C-U-Out. See Burhans, 277 Kan. at 863-68. Under common law recognized and applied in Kansas, a bondsman may arrest a principal such as Wright, even if that arrest requires breaking and entering the principal's own home. 277 Kan. at 863-64. But common law does not permit a bondsman unfet- tered legal access to a third party's home to search for a principal subject to bond. Indeed, a bondsman's forcible entry into a third party's dwelling to arrest a person who does not reside there and who has not been observed there may expose the bondsman to successful prosecution for criminal trespass or assault. See 277 Kan. at 862, 868, 872-73. The information in the record does not establish that Wright did or did not live at the Williamses' home. Her absence at the 11 p.m. time of C-U-Out's agents' entry gives rise to a reasonable inference that she did not live there. Kansas statutory law also does not indisputably allow the type of conduct C-U-Out's agents engaged in. The main statutory provision on bondsmen does not directly address entry into a principal's or another's home, although it provides generally that a principal's surety may make an arrest of the principal and deliver him or her to law enforcement custody. See K.S.A. 22-2809. A second provision sets up safeguards for such arrests, requiring that any surety or agent of a surety

"who intends to apprehend any person in [Kansas] . . . shall inform law enforcement authorities in the city or county in which such surety or agent of a surety

VOL. 310 SUPREME COURT OF KANSAS 787

Williams v. C-U-Out Bail Bonds intends such apprehension, before attempting such apprehension. The surety or agent of a surety shall present to the local law enforcement authorities a certified copy of the bond, a valid government-issued photo identification, written appointment of agency, if not the actual surety, and all other appropriate paperwork identifying the principal and the person to be apprehended. Local law enforcement may accompany the surety or agent." (Emphasis added.) K.S.A. 2014 Supp. 22-2809a(b).

We cannot be certain at this point that C-U-Out complied with this provision. But the allegation that one of the agents spoke to the police officers gives rise to a reasonable inference that law enforcement may have been unaware of the attempt to apprehend Wright before the officers arrived at the Williamses' home that night. The third potential source of authority for C-U-Out's entry— the bond agreement—is unavailable for our review because it is not contained in the record on appeal. However, the amended petition alleged that the C-U-Out agents had "no personal knowledge that Ms. Wright was or even had been at the home, and, in fact, Ms. Wright was never at the home at the time of the . . . incident, nor was there any available evidence at the time to suggest that she was." This allegation gives rise to a reasonable inference that the C-U-Out agents lacked information from the bond agreement to support Wright's residence at the Williamses' home. In short, the C-U-Out agents may have been acting lawfully or unlawfully. They may have known one way or the other; the police officers may have known one way or the other. These are fact issues to be determined under the governing law. Under our standard requiring us to treat all facts alleged in the amended petition and the reasonable inferences to which they give rise as true, we conclude that the Court of Appeals panel was too hasty in dis- regarding the amended petition's assertions that the agents intended to act illegally and that the City's police officers knew it and turned a blind eye.

Existence of a Duty

Having ruled that the plaintiffs alleged sufficient facts in their amended petition to support their claim that the C-U-Out agents intended to act illegally and that the police officers knew it, we turn to whether the plaintiffs have any hope of establishing that

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Williams v. C-U-Out Bail Bonds the police, and thus the City, had a duty of reasonable care that required them to respond differently. As is always true with any negligence claim, the plaintiffs ultimately must prove by a preponderance of the evidence "'(1) a duty owed to the plaintiff[s], (2) breach of that duty, (3) causation between the breach of duty and the injury to plaintiff[s], and (4) damages suffered by the plaintiff[s]." Manley v. Hallbauer, 308 Kan. 723, 726, 423 P.3d 480 (2018). '"Whether a duty exists is a question of law.'" Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 221, 262 P.3d 336 (2011). As the Court of Appeals panel recognized, the first hurdle that a plaintiff suing a governmental entity in negligence generally must overcome is establishing that the entity owed a duty to the plaintiff individually rather than a duty to the public at large. See Keiswetter v. State, 304 Kan. 362, 365, 373 P.3d 803 (2016) (discussing public duty doctrine). The mere fact that a governmental entity owes a legal duty to the public at large does not establish that the governmental entity owed a duty to an individual member of the public. See Montgom- ery v. Saleh, 55 Kan. App. 2d 429, 438-39, 419 P.3d 8 (2018) (quoting Kirk v. City of Shawnee, 27 Kan. App. 2d 946, Syl. ¶ 3, 10 P.3d 27 [2000]). A law enforcement officer's general duty to preserve the peace is one such duty. Accord Mills v. City of Over- land Park, 251 Kan. 434, Syl. ¶ 5, 837 P.2d 370 (1992) ("As a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large."); see Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 53, 536 P.2d 54 (1975); see also South et al. v. State of Maryland, Use of Pottle, 59 U.S. (18 How.) 396, 402-03, 15 L. Ed. 433 (1855) ("It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministeri- ally, and is bound to render certain services to individuals . . . he is liable for acts of misfeasance or non-feasance to the [injured] party."). To warrant an exception to the public duty doctrine, a plaintiff suing a governmental entity must establish either a special relationship or a specific duty owed to the plaintiff individually. See

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Williams v. C-U-Out Bail Bonds

Mills, 251 Kan. 434, Syl. ¶ 5 ("Absent some special relationship with or specific duty owed an individual, liability will not lie for damages."). The Restatement (Second) of Torts outlines several special relationships that may form the basis for such a government-entity duty, and we have used the Restatement as authority for establishing a route to liability in the past. See Hesler v. Osawatomie State Hospital, 266 Kan. 616, 624-25, 971 P.2d 1169 (1999) (discussing special relationships set out in Restatement [Second] of Torts §§ 314A, 316-319, and 320 [1964]). The special relationships discussed in Restatement §§ 314A-320 include those between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities and third parties, and persons with custody of another and third parties. See McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991). The existence of one of these relationships may create a duty for the actor to control the conduct of another, either to protect that person or third parties. See Restatement (Second) of Torts § 315. This list of special relationships constitutes one set of bases for an exception to the general rule that the "fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Restatement (Second) of Torts § 314 (1965) (duty to act for protection of others). But a duty of affirmative action to aid another also may arise in other situations. See Restatement (Second) of Torts § 321 (duty to act when prior conduct found to be dangerous); § 322 (duty to aid another harmed by actor's conduct); § 323 (negligent performance of undertaking to render services); § 324 (duty of one who takes charge of another who is helpless); § 324A (liability to third parties for negligent undertaking). Of particular note, Restatement (Second) of Torts § 323 recognizes a cause of action for negligent performance of an undertaking to render services. See Sall v. T's, Inc., 281 Kan. 1355, 1361-72, 136 P.3d 471 (2006) (applying § 323 to nongovernmental defendant).

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

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Williams v. C-U-Out Bail Bonds

"(a) his failure to exercise such care increases the risk of such harm, or

"(b) the harm is suffered because of the other's reliance upon the undertaking." Restatement (Second) of Torts § 323 (1965).

In drafting this section of the Restatement, the American Law Institute included two caveats:

"The Institute expresses no opinion as to whether:

"(1) the making of a contract, or a gratuitous promise, without in any way entering upon performance, is a sufficient undertaking to result in liability under the rule stated in this Section, or

"(2) there may not be other situations in which one may be liable where he has entered upon performance, and cannot withdraw from his undertaking without leaving an unreasonable risk of serious harm to the other."

Section 323 applies "whether the harm to the other or his things results from the defendant's negligent conduct in the manner of his performance of the undertaking, or from his failure to exercise reasonable care to complete it or to protect the other when he discontinues it." Restatement (Second) of Torts § 323, comment a. The rule applies both to undertakings that are gratuitous and those undertaken for consideration. With respect to termination of gratuitous aid, the Restatement takes the position that the person is "not required to continue [the service] indefinitely, or even until he has done everything in his power to aid and protect the other." Restatement (Second) of Torts § 323, comment c. Generally, the actor can abandon aid at any time.

"Where, however, the actor's assistance has put the other in a worse position than he was in before, either because the actual danger of harm to the other has been increased by the partial performance, or because the other, in reliance upon the undertaking, has been induced to forego other opportunities of obtaining assistance, the actor is not free to discontinue his services where a reasonable man would not do so." Restatement (Second) of Torts § 323, comment c.

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Williams v. C-U-Out Bail Bonds

The Institute also noted:

"The Caveat also leaves open the question whether there may not be cases in which one who has entered on performance of his undertaking, and cannot withdraw from it without leaving an unreasonable risk of serious harm to another, may be subject to liability even though his conduct has induced no reliance and he has in no way increased the risk. Clear authority is lacking, but it is possible that a court may hold that one who has thrown rope to a drowning man, pulled him half way to shore, and then unreasonably abandoned the effort and left him to drown, is liable even though there were no other possible sources of aid, and the situation is made no worse than it was." Restatement (Second) of Torts § 323, comment e.

As this court has noted in discussing § 323, that section is

"based upon the legal principle that a valuable consideration is not a prerequisite to the existence of a duty to exercise due care. The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which an action lies. . . . Stated in another way, where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking the act must generally be performed with ordinary or reasonable care. In 1928, Benjamin N. Cardozo, then Chief Judge of the Court of Appeals of New York, in Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928), stated the rule in the following language:

"'"It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all" [Citations omitted]. The plaintiff would bring its case within the orbit of that principle. The hand once set to a task may not always be withdrawn with impu- nity though liability would fail if it had never been applied at all. . . .' p. 167." Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 488-89, 657 P.2d 532 (1983).

This court has applied a similar section of the Restatement in the context of a police officer's duty. See Fudge v. City of Kansas City, 239 Kan. 369, 373, 720 P.2d 1093 (1986) (applying Restate- ment [Second] of Torts § 324A, which expands liability of negligent performance of undertaking to third parties), superseded by statute on other grounds as stated in Woodruff v. City of Ottawa, 263 Kan. 557, Syl. ¶ 8, 951 P.2d 953 (1997). In Fudge, James E. Fudge's wife brought a wrongful death and survival action against the City of Kansas City and various police officers after her husband was killed in an accident. The plaintiff alleged that the officers should have taken the intoxicated person

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Williams v. C-U-Out Bail Bonds who caused the accident into custody because they knew that the person had the potential to harm others. This court held that the officers owed James Fudge a duty under those circumstances. Fudge, 239 Kan. at 373. The officers' duty to take the intoxicated person into custody stemmed from the police department's policy requiring officers to take an alcohol- or drug-incapacitated person into protective custody if he or she is likely to cause physical injury to the person or another. 239 Kan. at 372-73. This court relied on Restatement (Second) of Torts § 324A, which reads:

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

"(a) his failure to exercise reasonable care increases the risk of such harm, or

"(b) he has undertaken to perform a duty owed by the other to the third person, or

"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

Returning to this case, in light of the various duties outlined above, we cannot say that the plaintiffs' amended petition failed to state a claim upon which relief could be granted because it lacked allegations sufficient to demonstrate the existence of a duty owed to the plaintiffs individually. See Cohen, 296 Kan. at 545-46 (if well-pled facts and inferences state any claim upon which relief can be granted, dismissal improper); Halley, 271 Kan. at 656 (dismissal proper only when petition clearly demonstrates plaintiff does not have claim). Although the existence of a duty raises a question of law, where the defendant's duty is predicated on an affirmative act or undertaking, there is a threshold factual question of whether the defendant's behavior was such that it could trigger a duty. See Cunningham v. Braum's Ice Cream & Dairy Stores, 276 Kan. 883, 894, 80 P.3d 35 (2003) (defendant's agreement or affirmative act indicating willingness to provide services is a threshold requirement for duty to arise). Moreover, in situations such as this, the

VOL. 310 SUPREME COURT OF KANSAS 793

Williams v. C-U-Out Bail Bonds factual scope of an undertaking will define the scope of the duty. See McGee, 248 Kan. at 442. The facts alleged in the plaintiffs' amended petition and the reasonable inferences arising from those facts lead to the conclusion under § 323 that the officers undertook to render services to the plaintiffs. They did not merely respond to JoeAnn's 911 call; they also remained at the scene for a time, observing the C-U-Out agents' actions; and they spoke to one of the agents, thereby at least initiating an investigation. They did not, in the plaintiffs' view, continue or complete their investigation, abandoning their undertaking to assist the Wil- liams family prematurely. Once the officers spoke to C-U-Out's agent, they affirmatively undertook something beyond their mere public duty of responding to the 911 call. This duty could then be breached by an omission. See Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 272, 130 P.3d 555 (2006) (elements of negligence are [1] existence of duty, [2] act or omission in breach of duty). On this record, given our responsibility to credit the amended petition's factual allegations and examine whether they support a cause of action under any theory, we hold that dismissal on the ground that plaintiffs would never be able to show that the officers and the City owed them an individual duty was error. The amended petition was sufficient to support the existence of a police and City duty under Restatement (Second) of Torts § 323. See also Daubenspeck v. Com., 894 A.2d 867, 871 (Pa. Commw. Ct. 2006) ("In order to prove a special relationship, a party must establish that the governmental entity was aware of the individual's situation or unique status, had knowledge of the potential for the harm the individual suffered, and voluntarily assumed, because of this knowledge, to protect the individual from the harm which occurred.").

KTCA Discretionary Function Immunity

Having disposed of the duty question in the plaintiffs' favor, we turn to the plaintiffs' second challenge to the Court of Appeals panel's opinion: Were the officers, and thus, the City, nevertheless immune from liability under the KTCA?

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Williams v. C-U-Out Bail Bonds

Whether "a governmental entity is immune from liability under an immunity exception of the [KTCA] is a matter of law. Ac- cordingly, appellate review is de novo." Soto v. City of Bonner Springs, 291 Kan. 73, Syl. ¶ 4, 238 P.3d 278 (2010); see also Pat- terson v. Cowley County, Kansas, 307 Kan. 616, 630, 413 P.3d 432 (2018). Historically, sovereign immunity exempted governmental entities and their officers from privately instituted civil suits without the expressed consent of the sovereign. See Collins v. Heavener Properties, Inc., 245 Kan. 623, 628, 783 P.2d 883 (1989) (discussing historical origin of sovereign immunity). With the adoption of the KTCA in 1979, the Legislature generally abolished sovereign immunity with respect to tort claims.

"Liability is the rule, and immunity is the exception for governmental entities sued under the KTCA. [Citation omitted.] The general rule of liability is established by K.S.A. 2015 Supp. 75-6103(a)[,] which provides:

'Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.'" Keiswetter v. State, 304 Kan. 362, 366, 373 P.3d 803 (2016).

Despite this general rule, the KTCA also provides exceptions that establish when a governmental entity or employee is not liable for damages. See K.S.A. 2018 Supp. 75-6104. "A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from" the exercise of certain enumerated functions. See K.S.A. 2018 Supp. 75-6104(a)-(x). In addition, the enumeration of exceptions to liability "shall not be construed to be exclusive nor as legislative intent to waive immunity from liability in the performance or failure to perform any other act or function of a discretionary nature." K.S.A. 2018 Supp. 75-6104. When the district judge granted the City's motion to dismiss, he did not explicitly cite to any specific statutory exception, instead referring to immunity "in the performance of [the officers'] discretionary functions." In its brief to the Court of Appeals, the

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Williams v. C-U-Out Bail Bonds

City explicitly invoked subsection (e) of K.S.A. 75-6104, which immunizes government actors and entities from liability for

"any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved." K.S.A. 2018 Supp. 75-6104.

As this is the only immunity provision invoked by the City on appeal, it is the only one with which we concern ourselves. In Robertson, an early KTCA case, this court addressed a district judge's dismissal of a lawsuit against the City of Topeka based on the KTCA discretionary function exception. As the district judge noted when dismissing this lawsuit, the Robertson opinion stated: "Even with the advent of notice pleading, it is incumbent upon a person asserting a claim against a public officer to make at least some allegation which, if true, would tend to establish that immunity was not a bar to the claim." Robertson, 231 Kan. at 359 (citing Hendrix v. City of Topeka, 231 Kan. 113, Syl. ¶ 5, 643 P.2d 129 [1982]). But we have recently held that a "governmental entity bears the burden to establish immunity under the exceptions of the Kansas Tort Claims Act." Soto, 291 Kan. 73, Syl. ¶ 5. Regardless, at this stage in this particular case, we are required to rely entirely on plaintiffs' amended petition to determine whether the City is certainly immune from liability. Multiple factors go into determining whether a function or a duty is discretionary.

"'Kansas courts look foremost to the nature and quality of the discretion exercised.' Further, '[t]he mere application of any judgment is not the hallmark of the exception.' But '[t]he more a judgment involves the making of policy[,] the more it is of a "nature and quality" to be recognized as inappropriate for judicial review.' The necessity that the actor employ expertise, whether educational or ex- periential, also is relevant to determining whether an action is discretionary or ministerial. See Allen[ v. Kansas Dept. of S.R.S.], 240 Kan. [620,] 623, [731 P.2d 314 (1987)] (employee's action not discretionary when decision on how to clean vomit from floor did 'not invol[ve] any particular skill or training'). Negligent performance of a ministerial act is not within the protective orbit of the discretionary function exception. [Citations omitted.]" Thomas, 293 Kan. at 234-35.

In Robertson, this court held that police officers were entitled to discretionary function immunity for how they responded to a

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Williams v. C-U-Out Bail Bonds call from the plaintiff requesting that a third party be removed from property. As the Robertson court summarized,

"Plaintiff advised the officers that [the third-party] had no right to be on the property, that he was intoxicated, and that he would most likely burn the house down if he remained. The officers refused to remove [him] from the premises and directed plaintiff to leave the premises. Approximately fifteen minutes later, the house burned." Robertson, 231 Kan. at 358-59.

After discussing the Federal Tort Claims Act and quoting approvingly from cases interpreting the FTCA, the court held that the officers were entitled to immunity.

"In the case at bar, Topeka police officers responding to a call were allegedly negligent in refusing to remove [the third-party] from the plaintiff's property when requested to do so. . . . [T]he officers had no clear-cut remedy. They were faced with a situation in which, to keep the peace, someone had to be evicted from the property. They exercised their judgment and asked the plaintiff to leave. We believe this to be an exercise of discretion within the discretionary function exception. It would be virtually impossible for police departments to establish specific guidelines designed to anticipate every situation an officer might encounter in the course of his work. Absent such guidelines, police officers should be vested with the necessary discretionary authority to act in a manner which they deem appropriate without the threat of potentially large tort judgments against the city, if not against the officers personally." 231 Kan. at 362.

The court's review of federal caselaw convinced it that "it is the nature and quality of the discretion exercised which should be our focus rather than the status of the employee exercising that discretion." 231 Kan. at 362. Federal courts had noted that "'[j]udgment is exercised in almost every human endeavor,' so that factor alone cannot be determinative of immunity." 231 Kan. at 361. Kansas Professor William E. Westerbeke has written about some inconsistency in the "model" Kansas courts have used to analyze discretionary function immunity, singling out Robertson for cogent criticism:

"Kansas cases also reflect the divide between the strict discretionary function limited to policy-oriented decisions and the broad discretionary function encompassing decisions that are not ministerial.

. . . .

" . . . [T]he pattern of decisions seems rather ad hoc, and occasionally an individual case will recognize one model of discretion, but then resolve the issue in a manner consistent with the other. For example, Robertson v. City of Topeka

VOL. 310 SUPREME COURT OF KANSAS 797

Williams v. C-U-Out Bail Bonds was the seminal case in which the court defined discretionary function as not simply a mere exercise of judgment, but rather a policy-oriented decision that the legislature intended to put beyond judicial review. . . . The court held the police conduct to be discretionary because the departmental manual did not provide a clear guideline on how police should handle the situation. In essence, despite its formal adoption of the narrow discretionary function limited to policy-oriented decisions, the court actually employed a broad discretionary function approach by relying on the absence of a mandated police procedure to justify a discretionary characterization of the police officer's conduct." Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years, 52 U. Kan. L. Rev. 939, 960-63 (2004).

We also note that, in some cases, this court has held that the existence of a common-law duty prevents application of the KTCA discretionary function exception. See Nero v. Kansas State University, 253 Kan. 567, 588, 861 P.2d 768 (1993). In Nero, the plaintiff, a KSU student, had sued KSU after being sexually assaulted in a coed residence hall by another student. On appeal after summary judgment in KSU's favor, this court addressed whether KSU owed the plaintiff any duty and whether KSU was immune to liability under any exception to the KTCA. The court held that the university-student relationship did not create a duty in and of itself. 253 Kan. at 580. But on the facts of the case, KSU owed the plaintiff a duty nonetheless.

"KSU is a landlord furnishing housing to its students in competition with private landlords. It owes a duty of reasonable care to its tenants. KSU has discretion whether to furnish housing to students. Once that discretionary decision is made, the university has a duty to use reasonable care to protect its tenants. Generally, whether a landlord has breached the duty of reasonable care to a tenant is a question of fact.

. . . .

"Here, KSU knew of the [previously] alleged rape [by the other student] and had taken reasonable steps under the circumstances—i.e., it removed [him] from the coed dormitory and moved him across campus and into an all-male dormitory. The university requested that [he] stay away from the coed dorm and the food service building. School was ending, and [he] was allowed to finish the semester.

"When [the other student] enrolled for intersession, KSU had the option of refusing to rent space to him. Instead, the university placed him in a coed dorm with the plaintiff, who is from a different state and presumably had no knowledge of the pending rape charge against [the other student]. [The plaintiff] knew [he] was a fellow student living in the same dormitory, which may have given her a

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Williams v. C-U-Out Bail Bonds false sense of security. She ended up alone with [the other student] in a public area. Had [he] been a stranger and not living in the same dormitory, [the plaintiff] might have been more likely to protect herself by immediately leaving the area." Nero, 253 Kan. at 583-84.

Based on those facts, the court concluded reasonable people could disagree whether the attack was foreseeable and thus whether KSU had violated its duty of reasonable care to the plaintiff. 253 Kan. at 584-85. Having established that KSU owed a duty, the court then turned to immunity. After discussing caselaw interpreting and applying discretionary function immunity, the court ruled that KSU was not immune from suit. "KSU exercised its discretion to build, maintain, and operate housing units. Once that discretionary decision was made, KSU had a legal duty to use reasonable care under the circumstances in protecting the occupants of the coed housing unit from foreseeable criminal conduct while in a common area." 253 Kan. at 588. In essence, when KSU crossed over from exercising its discretion in how to perform any duty owed to the public at large, it was obligated under common-law principles to exercise a duty of reasonable care the same as a private housing provider. When we review all of our cases, we conclude that the question of whether discretionary function immunity arises is highly contextual. We are unwilling to hold that any exercise of discretion—no matter how minute by however low level an employee— inevitably means that immunity exists. Here, on the facts alleged in the amended petition, officers arguably undertook an investigation of the incident that would ultimately cause the plaintiffs' damages. And the Court of Appeals panel's primary, perhaps sole, focus on the officers' failure to arrest the C-U-Out agents does not have the dispositive legal significance the panel appears to attribute to it. Rather, it is the officers' broader choice to discontinue the investigation they had begun that is under scrutiny. Certainly, if the alleged crime being committed was more obvious and had more serious consequences—a lynching, for example—we would not say that the officers' exercise of discretion to cut their investigation short was "of the nature and quality which the legislature intended to put beyond judicial review." See Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912 P.2d 729 (1996). We think the situation is likewise even when

VOL. 310 SUPREME COURT OF KANSAS 799

Williams v. C-U-Out Bail Bonds the allegedly illegal conduct is less obvious and its consequences less serious. Given the facts alleged in the plaintiffs' amended petition, this lawsuit should have survived the City's motion to dismiss based on discretionary function immunity under the KTCA.

CONCLUSION

For the reasons outlined above, we reverse the Court of Ap- peals opinion affirming the district court and reverse the district court's grant of the City's motion to dismiss. This case is remanded to district court for further proceedings.

JOHNSON, J., not participating.

JEFFREY R. ELDER, District Judge, assigned.1

1REPORTER'S NOTE: Under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution, District Judge Elder was appointed to hear case No. 116,883 to fill the vacancy on the court by the retirement of Jus- tice Lee A. Johnson.

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State v. Boettger

No. 115,387

STATE OF KANSAS, Appellee, v. TIMOTHY C. BOETTGER, Appellant.

___

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—First Amendment Right to Freedom of Speech— True Threat Speech Is Punishable. The freedom of speech referred to in the First Amendment to the United States Constitution does not include a freedom to disregard restrictions on certain well-defined and narrowly limited categories of speech that the government may regulate and, in some circumstances, punish. A true threat falls within one category of speech the government may punish.

2. SAME—First Amendment Right to Freedom of Speech—True Threats Def- inition. True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not intend to commit violence.

3. STATUTES—Portion of K.S.A. 2018 Supp. 21-5415(a)(1) Held Unconsti- tutionally Overbroad. The portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear is unconstitutionally overbroad because it punishes conduct that may be constitutionally protected under some circumstances.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 23, 2017. Appeal from the Douglas District Court; RICHARD M. SMITH, judge. Opinion filed October 25, 2019. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.

Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: The First Amendment to the United States Con- stitution prohibits the government from abridging our freedom of speech. But that freedom of speech is not without limits. The United States Supreme Court has recognized certain well-defined and narrowly limited categories of speech that the government

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State v. Boettger may restrict and even criminally punish. One such category is that of a true threat. This appeal raises questions about what constitutes a true threat and, more specifically, whether the only way to make a true threat is to actually intend to cause fear. Timothy C. Boett- ger raises these questions by challenging the constitutionality of a provision in the Kansas criminal threat statute, K.S.A. 2018 Supp. 21-5415(a)(1), that allows for a criminal conviction if a person makes a threat in reckless disregard of causing fear. We hold this reckless disregard provision is unconstitutionally overbroad, and we reverse Boettger's conviction because it is based solely on that unconstitutional provision.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Boettger of one count of criminal threat for statements he made to Cody Bonham. Boettger frequented the convenience store where Bonham worked and often spoke with Bonham and another employee, Neil Iles. On the night of the incident, Boettger came into the store and bought a cup of coffee. He spoke to Iles for a few minutes near the cash register. He told Iles he was upset because he had found his daughter's dog in a ditch. The dog had died from a gunshot wound, and Boettger was angry the sheriff's department had not investigated. Iles recalled Boettger saying "these people . . . might find themselves dead in a ditch somewhere." Iles thought Boettger was referring to the shooter. Based on past conversations, Iles knew Boettger often had an intense way of speaking and a tendency to get upset. Iles thought Boettger was no more upset than he had been in other situations, and Iles perceived Boettger's reaction as a general complaint about the sheriff's department's inaction. Boettger walked out of the store but soon came back. At that time, Bonham was stocking a shelf in the aisle nearest to the door. Boettger and Bonham were well-acquainted, having visited between 600 and 800 times over the course of the previous four years. Boettger also knew Bonham's family. He had dated Bon- ham's aunt and he had known Bonham's father since high school. Boettger knew Bonham's father was a detective in the Douglas County Sheriff's Office.

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Like Iles, Bonham knew Boettger had an intense way of speaking about certain subjects. But on this occasion, Bonham felt Boettger was unusually intense as he told Bonham about being upset because of what happened to his daughter's dog and the sheriff's department's failure to investigate. Boettger clenched his fists, and he was visibly shaking. Bonham further testified that Boettger spoke as he approached, saying, "You're the man I'm looking for." According to Bonham, Boettger continued by saying "he had some friends up in the Paseo area in Kansas City that don't mess around, and that I was going to end up finding my dad in a ditch." Boettger ended the conversation by saying, "'You remember that.'" Iles saw Boettger speaking with Bonham but could not hear their conversation. After Boettger left, Iles noticed that Bonham appeared to be distraught. Bonham relayed what happened and called his father to tell him about the incident. Bonham drafted an email to record the details of his conversation with Boettger and called the police to report the incident. At trial, Boettger admitted he knew Bon- ham's father was a member of the sheriff's department but denied threatening to harm him. He asserted Bonham was mistaken about what he said. Boettger denied mentioning friends from the Paseo area, saying instead that he had referred to friends in North Kansas City. Boettger generally claimed he had no intent to threaten anyone and did not mean Bonham or his family any harm. He felt he was on good terms with the family based on his past interactions and relationship with Bonham's father and aunt. The district court instructed the jury a conviction required finding that Boettger "threatened to commit violence and communicated the threat with reckless disregard of the risk of causing fear in Cody Bonham." The jury convicted Boettger of one count of reckless criminal threat under K.S.A. 2016 Supp. 21- 5415(a)(1). Boettger timely appealed, raising five arguments. The Court of Appeals rejected his arguments and affirmed his conviction and sentence. See State v. Boettger, No. 115,387, 2017 WL 2709790, at *1 (Kan. App. 2017) (unpublished opinion). Boettger timely petitioned for review, raising the same five arguments he had made before the Court of Appeals. This court granted review but only on three of the issues: (1) whether the

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State v. Boettger reckless form of criminal threat under K.S.A. 2018 Supp. 21- 5415(a)(1) is unconstitutionally overbroad; (2) whether the reckless threat provision is unconstitutionally vague; and (3) whether the jury instruction on the elements of reckless criminal threat was clearly erroneous.

ANALYSIS

The three issues before this court all relate to Kansas' criminal threat statute, K.S.A. 2018 Supp. 21-5415(a). There, the Legisla- ture defined "criminal threat" to include a threat to "(1) [c]ommit violence communicated with intent to place another in fear . . . or in reckless disregard of the risk of causing such fear." Boettger's arguments are specific to the last portion of this definition—a threat made in reckless disregard of the risk of causing fear. In his first two arguments, Boettger asserts the reckless criminal threat provision is both unconstitutionally overbroad and vague. Issues about the constitutionality of a statute present questions of law over which this court has unlimited review. State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000) (overbreadth and vagueness). Boettger carries the burden to establish the statute is unconstitutional. See State v. Williams, 299 Kan. 911, 920, 329 P.3d 400 (2014). Before addressing Boettger's arguments, we must consider whether he has preserved his constitutional challenges for appellate review. Generally, a party cannot raise an issue for the first time on appeal, and Boettger did not present the arguments to the district court. See Williams, 299 Kan. at 929. Even so, Boettger argued to the Court of Appeals that both his overbreadth and vagueness challenges fell within recognized exceptions to the preservation rule. He specifically pointed to exceptions allowing a party to raise a constitutional argument for the first time on appeal if it presents a question of law or if consideration of it is necessary to prevent the denial of a fundamental right. See State v. Herbel, 296 Kan. 1101, 1116, 299 P.3d 292 (2013). The Court of Appeals accepted those justifications. See Boettger, 2017 WL 2709790, at *2, 5. It also concluded Boettger had standing to raise the argument that K.S.A. 2018 Supp. 21-5415(a)(1) makes unlawful constitutionally protected

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State v. Boettger conduct even though he has not asserted that he himself was engaged in a protected activity. See Williams, 299 Kan. at 919 (holding a litigant has standing to assert overbreadth challenge that seeks to protect First Amendment rights of third parties). The State did not cross-petition for review to ask us to consider either of these holdings. When a party does not cross-petition for review on an issue decided adversely to that party by the Court of Appeals, we deem it as settled on review. Ullery v. Othick, 304 Kan. 405, 415, 372 P.3d 1135 (2016) (Court of Appeals holding not included in petition or cross-petition for review not before this court); see Supreme Court Rule 8.03 (h)(1) (2018 Kan. S. Ct. R. 56). We, therefore, consider his constitutional challenges to the statute.

ISSUE 1: K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad.

Boettger first argues the reckless form of criminal threat criminalizes speech protected under the First Amendment to the United States Constitution and is therefore overbroad. "[A]n overbroad statute makes conduct punishable which under some circumstances is constitutionally protected." Whitesell, 270 Kan. 259, Syl. ¶ 6. A party arguing a statute is overbroad must show "(1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing" constitutional ap- plications of the law from unconstitutional ones. 270 Kan. 259, Syl. ¶ 6; see Dissmeyer v. State, 292 Kan. 37, 40-41, 249 P.3d 444 (2011); see also, e.g., Houston v. Hill, 482 U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (A statute "that make[s] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid".); Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (A statute may be overbroad "if in its reach it prohibits constitutionally protected conduct."). To determine whether the reckless disregard provision is overbroad, we must consider the scope of speech protected by the First Amendment.

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1.1 First Amendment protections

The First Amendment to the United States Constitution provides: "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. This free speech protection extends to state laws through the Equal Protection Clause of the Four- teenth Amendment. See Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit expression of an idea simply because society itself finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). "From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas." R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). These limited classes consist of "well-defined and narrowly limited" speech or expressive conduct that has "no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Classes of speech the government may punish include obscenity, defamation, fighting words, incitement to imminent breach of the peace, and "true threats." See Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003); R.A.V., 505 U.S. at 383. The United States Supreme Court has "recognized that 'the freedom of speech' referred to by the First Amendment does not include a freedom to disregard these traditional limitations." 505 U.S. at 383. Even though governmental restrictions on these categories of speech may be constitutional, they can also go too far and result in an infringement of First Amendment rights. The United States Supreme Court dealt with such a situation in R.A.V., 505 U.S. 377. R.A.V., a minor, was convicted of violating St. Paul, Minne- sota's Bias-Motivated Crime Ordinance. The ordinance prohibited displaying a symbol if one knows or has reason to know it "arouses anger, alarm or resentment in others on the basis of race,

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State v. Boettger color, creed, religion or gender." The United States Supreme Court accepted the Minnesota Supreme Court's determination that the ordinance applied only to fighting words, as defined in Chap- linsky, 315 U.S. at 572 ("Fighting words" are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."). And Chaplinsky held that the category of fighting words is one classification that "'is not in any proper sense communication of information or opinion safeguarded by the Consti- tution.'" 315 U.S. at 572 (quoting Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S. Ct. 900, 84 L. Ed. 1213 [1940]). Even so, the Court held the ordinance violated the First Amendment because it regulated the content of the speech—that is, it prohibited speech "solely on the basis of the subjects the speech addresses." R.A.V., 505 U.S. at 381. The R.A.V. Court recognized that some United States Su- preme Court decisions could be read as holding that fighting words were categorically unprotected by the First Amendment. 505 U.S. at 383; see, e.g., Chaplinsky, 315 U.S. at 571-72 ("There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."). But the Court noted that these statements must be read in context and, in context, they were meant only as a "shorthand." 505 U.S. at 383. That shorthand, the Court explained, should not be taken to mean that all prohibitions against fighting words, obscenity, or libel are constitutional because the Court's holding must be limited to the specific circumstances of a case. Outside those circumstances, a restriction tar- geting one of those categories of speech may be unconstitutional and will be if it discriminates based on content. Thus, for example, "the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government." 505 U.S. at 383-84. The R.A.V. Court recognized that "the prohibition against content discrimination that we assert the First Amendment requires is not absolute," and it then discussed several exceptions. 505 U.S. at 387-90. Ultimately, the discrimination does not violate the Constitution if "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot." 505 U.S. at 390.

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1.2 True-threat doctrine

The United States Supreme Court has explained that the same tension can arise when the government attempts to criminalize "true threats." In Watts v. United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the United States Supreme Court thus held that "a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech." In that case, an 18-year-old protesting at a public rally after having received his draft classification was charged with knowingly and willfully threatening the President of the United States. The young man had said, "'If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.'" 394 U.S. at 706. The United States Supreme Court explained the statement was political hyper- bole and not a "true 'threat.'" 394 U.S. at 708. The true-threat doctrine mentioned in Watts is the focus of this case. The United States Supreme Court more fully explored the doctrine in Black, 538 U.S. 343. There, the Court again used the term "true threat" to differentiate between protected and unprotected speech, defining the term in a sentence that has become the focus of much of Boettger's and the State's arguments. It stated: "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." 538 U.S. at 359. The speaker need not intend to commit violence. "Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" 538 U.S. at 360.

1.3 Boettger's contentions—matters of first impression

Boettger essentially contends that under Virginia v. Black's definition of "true threat" set out above, he can be found guilty of making a true threat—one the First Amendment does not protect—only if he possessed the subjective intent to both (1) utter threatening words and (2) cause another to fear the possibility of

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State v. Boettger violence. He further argues K.S.A. 2018 Supp. 21-5415(a)(1) is overbroad because it encompasses more than a true threat and could punish someone for uttering distasteful words that are not a true threat by punishing someone who speaks "in reckless disregard of the risk of causing such fear" of violence. This court has never considered whether a conviction for recklessly making a threat can be a true threat or instead violates the First Amendment. Although not asking the question in this way, in 2001 (two years before the decision in Black), a panel of the Court of Appeals rejected arguments that a previous version of the criminal threat statute violated the First Amendment because it was overbroad and vague. State v. Cope, 29 Kan. App. 2d 481, 29 P.3d 974 (2001), rev'd on other grounds 273 Kan. 642, 44 P.3d 1224 (2002). The statute as it read in 2001 allowed a conviction based on someone making a threat in reckless disregard of causing an evacuation of a building, place of assembly, or facility of trans- portation. See 29 Kan. App. 2d at 483-84. The Cope panel reached its ruling, in part, by relying on State v. Bourke, 237 Neb. 121, 122, 464 N.W.2d 805 (1991), disapproved on other grounds by State v. Warner, 290 Neb. 954, 863 N.W.2d 196 (2015). In turn, the State now cites Bourke in support of its argument that Kansas' current statute is constitutional. But Bourke provides limited guidance. There, the Nebraska Supreme Court considered the constitutionality of a statute very similar to Kansas' 2001 version of the criminal threat statute. A criminal defendant argued at trial that the reckless disregard provision was both unconstitutionally vague and overbroad. The Nebraska trial court found the reckless disregard provision of the Nebraska statute unconstitutionally vague. On appeal from that ruling the question before the Ne- braska Supreme Court was thus vagueness—not overbreadth. See 237 Neb. at 122. As a result, the Nebraska decision did not support that portion of Cope dealing with the overbreadth issue, only the panel's vagueness analysis. The Cope panel also cited several Kansas cases dealing generally with an issue about overbreadth. But the precedential value of these cases was limited because none of them dealt with the criminal threat statute or discussed the true- threat doctrine. The State attempts to mitigate this by pointing out

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State v. Boettger that post-Black the Nebraska Supreme Court reaffirmed Bourke. See State v. Nelson, 274 Neb. 304, 311, 739 N.W.2d 199 (2007). Again, however, the Nebraska Supreme Court in Bourke considered an issue related to whether the statute was vague, not whether it was overbroad. And it did not discuss the true-threat doctrine. As a result, these authorities provide no guidance on whether a recklessly made statement of violence may constitutionally constitute a true threat. And neither does Cope. We thus find no Kan- sas authority deciding whether someone who utters a threat of violence in reckless disregard of causing fear has uttered a true threat. Nor has the United States Supreme Court explicitly decided the question. According to Justice Thomas, the lack of a decision by that Court on the issue "throws everyone from appellate judges to everyday Facebook users into a state of uncertainty." Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 2018, 192 L. Ed. 2d 1 (2015) (Thomas, J., dissenting). Indeed, as we will detail, post- Black courts determining the type of intent necessary to qualify as a true threat have reached differing results. A more detailed discussion of the Virginia v. Black decision places those differing views in context.

1.4 Virginia v. Black

Barry Black and others were separately convicted of violating a Virginia statute that made it illegal to burn a cross "with the intent of intimidating any person or group of persons." Va. Code Ann. § 18.2-423 (1996). The statute added that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. § 18.2-423. The Virginia Supreme Court held the statute was facially unconstitutional for two reasons: (1) It "selectively chooses only cross burning because of its distinctive message" and was "analytically indistinguishable from the ordinance found unconstitutional in R.A.V., [505 U.S. 377]", and (2) the prima facie evidence provision of the statute "enhanced [the] probability of prosecution" and was thus overbroad because it "chills the expression of protected speech." Black v. Commonwealth of Virginia, 262 Va. 764, 774,

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777, 553 S.E.2d 738 (2001), aff'd in part, vacated in part 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). The case was appealed and reached the United States Supreme Court, where the nine justices wrote five opinions. A majority of the Court—formed through multiple opinions—disagreed with the Virginia Supreme Court's first holding that the statute was indistinguishable from the ordinance found unconstitutional in R.A.V. A plurality of the Court—consisting of Justice O'Connor, who authored the opinion, joined by Chief Justice Rehnquist, Jus- tice Stevens, and Justice Breyer—reviewed "cross burning's long and pernicious history as a signal of impending violence." 538 U.S. at 363. Because of that history, Justice O'Connor wrote: "The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." 538 U.S. at 363. She catego- rized the cross burning as a true threat, as had the Virginia Su- preme Court. Justice O'Connor, however, disagreed with the Virginia Court's application of R.A.V. to hold that the cross-burning statute was unconstitutional because it discriminated on the basis of content and viewpoint. Black, 262 Va. at 771-76. She concluded the Virginia statute fell within an exception discussed in R.A.V. under which "the First Amendment permits content discrimination 'based on the very reasons why the particular class of speech at issue . . . is proscribable.'" Black, 538 U.S. at 362 (quoting R.A.V., 505 U.S. at 393). That very reason, according to Justice O'Connor, was because the statute prohibited a true threat. And it did not single out "'disfavored topics'" or differentiate conduct based on the "victim's race, gender, or religion, or because of the victim's 'political affiliation, union membership, or homosexuality.'" 538 U.S. at 362. Justice Stevens concurred, writing that an intent to intimidate "qualifies as the kind of threat that is unprotected by the First Amendment." 538 U.S. at 368 (Stevens, J., concurring). And Jus- tice Scalia agreed that "a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate." 528 U.S. at 368 (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part); see also 538

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U.S. at 388 (Thomas, J., dissenting) ("Although I agree with the majority's conclusion that it is constitutionally permissible to 'ban . . . cross burning carried out with the intent to intimidate,' [citation omitted] I believe that the majority errs in imputing an expressive component to the activity in question[.]"). The remaining justices disagreed. In an opinion written by Justice Souter joined by Justices Kennedy and Ginsburg, they agreed with the Virginia Supreme Court that the statute was unconstitutional and could not be saved by any R.A.V. exception. 538 U.S. at 380 (Souter, J., concurring in the judgment in part and dissenting in part). But the Court's differences of opinion did not end there. Justice O'Connor, having disagreed with the Virginia Su- preme Court's first holding, turned to its second holding—that the statute was overbroad because of the prima facie evidence provision providing that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. § 18.2-423. The plurality observed that cross burning can occur for reasons other than intimidation. "[S]ometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, '[b]urning a cross at a political rally would almost certainly be protected expression.'" Black, 538 U.S. at 365-66 (quoting R.A.V., 505 U.S. at 402 n.4 [White, J., concurring in judgment], and citing Brandenburg v. Ohio, 395 U.S. 444, 445, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). The plurality opinion concluded: "The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut." 538 U.S. at 367. Although Justice Souter did not join this portion of the plurality opinion, he expressed similar concerns. See 538 U.S. at 384-87. Justices Scalia and Thomas neither joined in this portion of the plurality opinion nor expressed similar concerns. Instead, they disagreed with the plurality's conclusion the prima facie evidence provision made the statute unconstitutional. 538 U.S. at 368-79.

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1.5 Black's guidance

Black did not directly address whether the First Amendment tolerates a conviction for making a threat even though there was no intent to cause fear. Even so, the decision explains the intent necessary to have a true threat prosecuted without violating the First Amendment's protections. The explanation begins with the passage defining a "true threat." Again, the Court said:

"'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, [394 U.S.] at 708 ('political hyberbole' is not a true threat); R.A.V. v. City of St. Paul, 505 U.S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" 538 U.S. at 359-60.

A majority of the Court (the four members of the plurality, plus Justice Scalia) explicitly agreed on this statement. See 538 U.S. at 368 (Scalia, J., joining Parts I-III of Justice O'Connor's opinion). Here, in rejecting Boettger's arguments, the panel seemingly focused on the second portion of the first sentence in which the Court referred to "an intent to commit an act of unlawful violence to a particular individual or group of individuals." It held the Black Court's use of the word "'intent' is a shorthand method for referring to the need for a mens rea higher than accidental or negligent conduct." Boettger, 2017 WL 2709790, at *4. The panel also concluded that the Black Court "did not rule on what level of mens rea is necessary in a criminal threat statute," in part because the Virginia statute required subjective intent and the "constitutional necessity of that provision was never at issue." Boettger, 2017 WL 2709790, at *4. Although the panel did not cite cases from other jurisdictions, several courts have reached similar conclusions. See United States v. Clemens, 738 F.3d 1, 10 (1st Cir. 2013) (interpreting Black's reference to "those statements where the 'speaker means to communicate a serious expression of an intent to commit an act of unlawful violence'" as "only requir[ing] the speaker to 'intend to

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State v. Boettger make the communication,' not the threat." [quoting Black, 538 U.S. at 359; United States v. Elonis, 730 F.3d 321, 329 (3d Cir. 2013)]), rev'd and remanded 575 U.S. 723, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015); United States v. Martinez, 736 F.3d 981, 986- 87 (11th Cir. 2013) ("Black did not import a subjective-intent analysis into the true threats doctrine. Rather, Black was primarily a case about the overbreadth of a specific statute—not whether all threats are determined by a subjective or objective analysis in the abstract."), vacated and remanded 575 U.S. ___, 135 S. Ct. 2798 (2015); United States v. Jeffries, 692 F.3d 473, 479-80 (6th Cir. 2012) ("[Black] says nothing about imposing a subjective standard on other threat-prohibiting statutes, and indeed had no occasion to do so: the Virginia law itself required subjective 'intent.' The problem in Black thus did not turn on subjective versus objective standards for construing threats. It turned on overbreadth—that the statute lacked any standard at all."); United States v. White, 670 F.3d 498, 508 (4th Cir. 2012) ("A careful reading of the requirements of § 875[c], together with the definition from Black, does not, in our opinion, lead to the conclusion that Black introduced a specific-intent-to-threaten requirement into § 875[c] and thus overruled our circuit's jurisprudence, as well as the jurisprudence of most other circuits, which find § 875[c] to be a general intent crime and therefore require application of an objective test in determining whether a true threat was transmitted."); United States v. Nicklas, 713 F.3d 435, 439-40 (8th Cir. 2013) (adopting Sixth Circuit's reasoning in Jeffries, 692 F.3d at 479-80); State v. Taupier, 330 Conn. 149, 170-71, 193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019) (Black does "not support the proposition a speaker constitutionally may be punished only when he has a specific intent to intimidate"; "[T]he plurality in Black was focused more on the Virginia cross burning statute's failure to differentiate between different levels of intent than on the specific mens rea that is constitutionally required before a person may be punished for threatening speech."). We disagree with these courts' reading of Black. Many of these decisions follow the reasoning of Elonis, 730 F.3d 321, which the United States Supreme Court reversed. Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015).

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State v. Boettger

Plus, there are several other reasons we do not dismiss the guidance provided by what we view as a plain reading of Black. Much of that guidance can be found in the sentence defining a true threat: "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Black, 538 U.S. at 359. The sentence has ambiguity. But the interpretation by the panel and other courts taking the same view ignores the first part of the sentence—that the speaker must "mean" to communicate a serious expression of an intent to commit violence. As a transitive verb, "mean" is defined as: "To have as a purpose or an intention; intend; To design, intend, or destine for a certain purpose or end." American Heritage Dictionary of the English Language 1088-89 (5th ed. 2011); see Webster's Third New Int'l Dictionary 1398 (1993) ("to have in the mind [especially] as a purpose or intention"; "to have an intended purpose"). Given this, we agree with the Tenth Circuit Court of Appeals' holding that this sentence "requir[es] more than a purpose to communicate just the threatening words. It is requiring that the speaker want the recipient to believe that the speaker intends to act vio- lently." United States v. Heineman, 767 F.3d 970, 978 (10th Cir. 2014). The Tenth Circuit found more support for this position in a later sentence in the same paragraph in which Justice O'Connor applied the true-threat definition to intimidation: "'Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.'" 767 F.3d at 978 (quoting Black, 538 U.S. at 360, and adding emphases). Based on these passages, the Tenth Circuit "read Black as establishing that a defendant can be constitutionally convicted of making a true threat only if the defendant intended the recipient of the threat to feel threatened." 767 F.3d at 978. Responding to those courts that read Black as only conveying that the speaker had to intend to utter the words, the Tenth Circuit observed that the Black Court had made clear the speaker uttering the threat need not actually intend to commit violence. Heineman, 767 F.3d at 978. The Tenth Circuit concluded these statements by

VOL. 310 SUPREME COURT OF KANSAS 815

State v. Boettger the Court would be meaningless if a true threat was not defined to require the intent to threaten:

"The proposition that the speaker need not intend to carry out the threat is a helpful qualification if there is a requirement that the defendant intend the victim to feel threatened. . . . But no such qualification is called for if the preceding sentence means that the only requisite mens rea is that the defendant 'knowingly says the words.' . . . Once it is established that the sole requisite intent is to say the (threatening) words, no reasonable person (juror) would then need to be informed that the defendant need not intend to carry out the threat. If there is no requirement that the defendant intend the victim to feel threatened, it would be bizarre to argue that the defendant must still intend to carry out the threat." 767 F.3d at 980-81.

Likewise, the Ninth Circuit Court of Appeals determined that a "natural reading" of Black's definition of true threats "embraces not only the requirement that the communication itself be intentional, but also the requirement that the speaker intend for his language to threaten the victim." United States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005); see United States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir. 2011). The Cassel court examined each of the separate opinions in Black and concluded that "eight Justices agreed that intent to intimidate is necessary and that the government must prove it in order to secure a conviction." 408 F.3d at 632 (citing Black, 538 U.S. at 359-60, 364-65, 367 [O'Con- nor, J., plurality]; 538 U.S. at 368 [Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part]; 538 U.S. at 385, 387 [Souter, J., concurring in the judgment in part and dissenting in part]); see also Schauer, Intentions, Conventions, and the First Amendment, 55 Sup. Ct. Rev. 197, 217 (2003) ("[I]t is plain that . . . the Black majority . . . believed that the First Amendment imposed upon Virginia a requirement that the threat- ener have specifically intended to intimidate."); Gilbert, Mocking George: Political Satire as 'True Threat' in the Age of Global Terrorism, 58 U. Miami L. Rev. 843, 883-84 (2004) ("[C]ross burning is proscribable as a true threat where it is done with the intention of intimidating. Where, however, cross burning is not done to intimidate . . . its use is protected under the First Amend- ment, even where the effect of the cross burning is to intimidate."); cf. Rothman, Freedom of Speech and True Threats, 25 Harv. J.L.

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State v. Boettger

& Pub. Pol'y 283, 317-18 (2001) (arguing, before Black, for a subjective intent requirement, and observing that "First Amendment law often requires proof of a specific state of mind before finding a speaker liable or allowing a criminal conviction of the speaker"). Further, although the panel and other courts are correct in stating that Black was dealing with a statute that clearly required the cross burning to occur "with the intent of intimidating," the Black plurality, in the context of its overbreadth analysis, discussed what had to be proven in order for there to be a true threat. This discussion became more general than the specific statute before the Court. Significantly, Justice O'Connor stated: "The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut." 538 U.S. at 367. This language, in particular, suggests the members of the Court joining Justice O'Connor's opinion went beyond recognizing that intent was part of the statutory elements of the Virginia statute. They also recognized that intent to intimidate must exist in order to distinguish cross burning as a means of protected expression under the First Amendment from cross burning as a threat of impending violence unprotected by the First Amendment. See 538 U.S. at 368 (Stevens, J., concurring) (An intent to intimidate "qualifies as the kind of threat that is unprotected by the First Amendment."). In other words, the plurality's overbreadth analysis was "predicated on the understanding that the First Amendment requires the speaker to intend to place the recipient in fear." Heineman, 767 F.3d at 978. And, as the Cassel court concluded:

"The Court's insistence on intent to threaten as the sine qua non of a constitutionally punishable threat is especially clear from its ultimate holding that the Virginia statute was unconstitutional precisely because the element of intent was effectively eliminated by the statute's provision rendering any burning of a cross on the property of another 'prima facie evidence of an intent to intimidate.'" 408 F.3d at 631.

The Tenth Circuit also pointed out that Justice O'Connor wrote that the prima facie evidence provision "'does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of

VOL. 310 SUPREME COURT OF KANSAS 817

State v. Boettger threatening or intimidating a victim.'" Black, 538 U.S. at 366. The Tenth Circuit then asked: "But how could that be a First Amend- ment problem if the First Amendment is indifferent to whether the speaker had an intent to threaten?" Heineman, 767 F.3d at 978-79. It then answered: "The First Amendment overbreadth doctrine does not say simply that laws restricting speech should not prohibit too much speech. It says that laws restricting speech should not prohibit too much speech that is protected by the First Amend- ment." 767 F.3d at 979. And Justice O'Connor's discussion makes clear "'the element of intent [is] the determinative factor separating protected expression from unprotected criminal behavior.'" Cassel, 408 F.3d at 632 (referring to statements in Black, 538 U.S. at 365, that "'same act' 'may mean that a person is engaging in constitutionally proscribable intimidation [or] only that the person is engaged in core political speech'" and "'a burning cross is not always intended to intimidate'"). Although Justice O'Connor's opinion only represented the position of four Justices, Justice Souter's opinion made similar points when discussing the prima facie evidence provision. He likewise noted that cross burning can be consistent with an intent to intimidate or with an "intent to make an ideological statement free of any aim to threaten." He referred to the intent to intimidate as "proscribable and punishable intent" and the other as permissible intent. Black, 538 U.S. at 385-86 (Souter, J., concurring in the judgment in part and dissenting in part). Both Justice O'Connor's and Justice Souter's opinions highlight that, if the First Amend- ment did not impose a specific intent requirement, "Virginia's statutory presumption was superfluous to the requirements of the Constitution, and thus incapable of being unconstitutional in the way that the majority understood it." Schauer, 55 Sup. Ct. Rev. at 217. We conclude a majority of the Black Court determined an intent to intimidate was constitutionally, not just statutorily, required. "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." (Emphases added.) Black, 538 U.S. at 360.

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State v. Boettger

Further, although Black addressed intimidation, its analysis applies equally to K.S.A. 2018 Supp. 21-5415(a)(1). The statute draws no distinction based on the means through which fear is caused. The plain meaning of the conduct prohibited by K.S.A. 2018 Supp. 21-5415(a)(1)—causing fear—is indistinguishable from the intimidation provision at issue in Black.

1.6 Recklessness

The Court of Appeals panel, however, rejected Boettger's argument that the Black Court's various references to "intent" eliminated the possibility of a true threat being made with a reckless disregard for causing fear of violence. The panel concluded Black left open the possibility of the culpable mental state being recklessness. The panel then turned to a discussion of Kansas law that defines "recklessness" as a culpable mental state that means a person who acts recklessly is aware of the nature of his or her conduct. 2017 WL 2709790, at *4-5 (quoting K.S.A. 2016 Supp. 21- 5202[a], [b], [j] and citing Kansas cases). These Kansas authorities, according to the panel, aligned with the following statement from Justice Alito's concurring and dissenting opinion in Elonis, 135 S. Ct. 2001: "Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway." 135 S. Ct. at 2015 (Alito, J., concurring in part and dissenting in part). The panel held: "Recklessness is sufficient mens rea to separate wrongful conduct from otherwise innocent conduct. Accord- ingly, we find that K.S.A. 2016 Supp. 21-5415(a)(1) does not criminalize constitutionally protected conduct by criminalizing threats to commit violence communicated in reckless disregard of the risk of causing fear in another." Boettger, 2017 WL 2709790, at *5. We do not quarrel with the panel's conclusion that recklessness can differentiate criminal conduct from innocent conduct. But that does not answer whether the statute violates the First Amendment by punishing protected speech. And while Justice

VOL. 310 SUPREME COURT OF KANSAS 819

State v. Boettger

Alito argues recklessness satisfies the First Amendment, we have trouble squaring that conclusion with Black and Elonis. In Elonis, Anthony Douglas Elonis had used social media to post self-styled rap lyrics containing graphically violent language. In the posts he wrote disclaimers saying the lyrics were "fictitious" and not intended to depict real persons. He also stated he was exercising his First Amendment rights. These posts led him to be charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another." The statute did not set out a required mental state. At trial, Elonis requested a jury instruction that the Government had to prove that he intended to communicate a threat. The trial court rejected this argument and instead instructed the jury under the standard of whether "'a reasonable person would foresee that the statement would be interpreted by those to whom the maker com- municates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.'" 135 S. Ct. at 2007. The United States Supreme Court held this instruction was erroneous. 135 S. Ct. at 2012. The Court applied a rule of statutory construction providing that the "'mere omission from a criminal enactment of any mention of criminal intent' should not be read 'as dispensing with it.'" 135 S. Ct. at 2009 (quoting Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288 [1952]). Instead, the Court would read into the statute "'only that mens rea which is necessary to separate wrongful conduct from "otherwise innocent conduct."'" 135 S. Ct. at 2010. And, in the context of the threat statute at issue, "'the crucial element separating legal innocence from wrongful conduct' is the threatening nature of the communication. . . . The mental state requirement must therefore apply to the fact that the communication contains a threat." 135 S. Ct. at 2011. The majority found error because the jury instruction imposed a negligence standard. It noted the court had "'long been reluctant to infer that a negligence standard was intended in criminal statutes'" because its focus on what a reasonable person would perceive was "inconsistent with 'the conventional requirement for criminal conduct—awareness of some wrongdoing.'" 135 S. Ct. at 2011.

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State v. Boettger

The Elonis majority stopped short of answering the question before us about whether a statute must require subjective intent to survive a First Amendment attack. It noted that during oral argument Elonis' attorney had contended that a reckless mental state would not be sufficient. But because the parties had not briefed the question, the majority refused to address it. And it specifically stated it was not addressing any First Amendment issues. 135 S. Ct. at 2012. Justice Alito took the majority to task for not answering whether reckless conduct could make a true theat. He later expressed his view that recklessness should suffice and that applying a reckless mens rea does not violate the First Amendment. 135 S. Ct. at 2013-16 (Alito, J., concurring in part and dissenting in part). His discussion focused on how the recklessness standard applied to Elonis, who had "made sure his wife saw his posts" and, in context, who could blame her for being fearful because "[t]hreats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace." 135 S. Ct. at 2017 (Alito, J., concurring in part and dissenting in part). This context is readily distinguishable from the facts here, as well as those in Black and Watts. Justice Alito then recognized and dismissed the possibility of a First Amendment issue:

"It can be argued that § 875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g., statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to 'exten[d] a measure of stra- tegic protection' to otherwise unprotected false statements of fact in order to ensure enough '"breathing space"' for protected speech. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). A similar argument might be made with respect to threats. But we have also held that the law provides adequate breathing space when it requires proof that false statements were made with reckless disregard of their falsity. See New York Times, 376 U.S., at 279-280 (civil liability); Garrison, 379 U.S., at 74-75 (criminal liability). Requiring proof of recklessness is similarly sufficient here." 135 S. Ct. at 2017 (Alito, J., concurring in part and dissenting in part).

At least two state courts have agreed with Justice Alito's view and others have recognized that recklessness may be a sufficient mens rea for a true threat. See State v. Taupier, 330 Conn. 149, 170-

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State v. Boettger

71, 193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019) (collecting some post-Black cases and holding recklessness standard constitutional in a true-threat context); Major v. State, 301 Ga. 147, 150-51, 800 S.E.2d 348 (2017) (upholding recklessness standard post-Black); see also Commonwealth v. Knox, 190 A.3d 1146, 1156 (Pa. 2018), cert. denied 139 S. Ct. 1547 (2019) (collecting some post-Black cases and noting an open question existed about whether recklessness standard can be applied in a true-threat context). Our reading of Black differs, however, and is reflected in Jus- tice Sotomayor's opinion in Perez v. Florida, 580 U.S. ___, 137 S. Ct. 853, 855, 197 L. Ed. 2d 480 (2017) (Sotomayor, J., concurring in denial of petition for writ of certiorari):

"Together, Watts and Black make clear that to sustain a threat conviction without encroaching upon the First Amendment, States must prove more than the mere utterance of threatening words—some level of intent is required. And these two cases strongly suggest that it is not enough that a reasonable person might have understood the words as a threat—a jury must find that the speaker actually intended to convey a threat." 137 S. Ct. at 855.

As we have discussed, we, too, read Black as holding that the speaker must actually intend to convey a threat. Acting with an awareness that words may be seen as a threat leaves open the possibility that one is merely uttering protected political speech, even though aware some might hear a threat. Boettger offers examples. Boettger first argues the protester in Watts could have been convicted under the Kansas statute. The protester communicated he would shoot the president; he thus made a threat. See K.S.A. 2018 Supp. 21-5111(ff) (defining "threat"). And he was aware of the risk of causing fear but continued anyway. See K.S.A. 2018 Supp. 21-5202(j) (defining "reckless"). As another example, Boettger poses the situation of a Black Lives Matter protester re- peating the lyrics of a well-known police protest song while standing near police officers. He quotes the lyrics as a threat to "'[t]ak[e] out a cop or two.' . . . N.W.A., Fuck tha Police, on Straight Outta Compton (Ruthless/Priority 1989)." Even if the protester did not intend to threaten the police, Boettger argues "[a] person in that situation runs a real risk of a conviction for reckless threat under Kansas' law, despite acting in protest by performing a controver- sial work of art." Finally, he suggests burning a "cross on private

822 SUPREME COURT OF KANSAS VOL. 310

State v. Boettger property within the view of a public roadway and other houses, where locals had stopped to watch" as part of a political rally would be an activity about which "the perpetrators would be conscious that it is seen as a threat, and would be acting in disregard of substantial and unjustifiable risk of causing fear." Such an act could be punishable under Kansas law, he argues, even if the protester intended politically protected speech on private property and did not intend to cause fear of violence. We find these examples persuasive illustrations of ways in which K.S.A. 2018 Supp. 21-5415(a)(1) potentially criminalizes speech protected under the First Amendment.

1.7 Summary

Black found specific intent was necessary to convict under the Virginia cross-burning statute at issue in that case. See 538 U.S. at 360. The Court stated "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Black, 538 U.S. at 360. It strains the plain meaning of the Court's language to conclude that "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" are not made "with the intent of placing the [particular individual or group of individuals] in fear of bodily harm or death." Black, 538 U.S. at 359-60. A person who "means to communicate a serious expression of an intent to commit an act of unlawful violence" is aware of the illegality of the violence he or she purportedly intends to commit and makes a serious expression of that intent, which he or she meant to communicate. (Emphasis added.) See Black, 538 U.S. at 360. This definition conveys that the conduct is intentional. Under Black, the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear causes the statute to be unconstitutionally overbroad because it can apply to statements made without the intent to cause fear of violence. See K.S.A. 2018 Supp. 21- 5202(h) and (j) (defining "intentionally" and "recklessly" in Kan- sas criminal statutes). The provision significantly targets protected

VOL. 310 SUPREME COURT OF KANSAS 823

State v. Boettger activity. And its language provides no basis for distinguishing circumstances where the speech is constitutionally protected from those where the speech does not warrant protection under the First Amendment. Boettger's conviction for reckless criminal threat must be reversed because it was based solely on the unconstitutional provision. See Whitesell, 270 Kan. 259, Syl. ¶ 6 (stating test for overbreadth).

ISSUES 2 and 3: Our holding renders these issues moot.

Boettger also argued K.S.A. 2018 Supp. 21-5415(a)(1) was unconstitutionally vague. And he alternatively contended his conviction should be overturned on another basis by arguing the jury instruction for reckless criminal threat was clearly erroneous. We need not reach these issues, however, because we have already granted Boettger the relief he seeks by reversing his conviction.

CONCLUSION

We find the reckless criminal threat provision of K.S.A. 2018 Supp. 21-5415(a)(1) unconstitutionally overbroad. For that reason, we reverse Boettger's conviction, which is based solely on that provision, and vacate his sentence.

Judgment of the Court of Appeals is reversed. Judgment of the district court is reversed.

JOHNSON, J., not participating.1

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 115,387. Justice Johnson retired effective September 6, 2019.

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Corvias Military Living, LLC v. Ventamatic, Ltd.

No. 116,307

CORVIAS MILITARY LIVING, LLC, and CORVIAS MILITARY CONSTRUCTION, LLC, Appellants, v. VENTAMATIC, LTD., and JAKEL, INC., Appellees.

___

SYLLABUS BY THE COURT

1. PRODUCT LIABILITY—KPLA Codifies Common-Law Economic Doc- trine. The Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq., codifies a modified version of the common-law economic loss doctrine. In a product liability cause of action, the KPLA excludes recovery of damages for any "direct or consequential economic loss" but permits a plaintiff to recover damages for any damage to property. K.S.A. 60-3302(d). This includes damage to the product itself.

2. SAME—KPLA Excludes Claim to Recover Direct or Consequential Eco- nomic Loss. Because the KPLA excludes from the scope of a product liability cause of action any claim to recover direct or consequential economic loss, the KPLA does not subsume or extinguish any legally viable alternative cause of action seeking recovery for direct or consequential economic loss.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 169, 397 P.3d 441 (2017). Appeal from Geary District Court; BENJAMIN J. SEXTON, judge. Opinion filed October 25, 2019. Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.

Charles L. Philbrick, pro hac vice, of Rathje & Woodward, LLC, of Wheaton, Illinois, argued the cause, and William J. Bahr, of Arthur-Green, LLP, of Manhattan, was with him on the briefs for appellants.

Seth A. Lowry, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and James P. Nordstrom, of the same firm, was with him on the briefs for appellee Ventamatic, Ltd.

David E. Rogers, of Foulston Siefkin LLP, of Wichita, argued the cause, and Daniel J. Buller, of the same firm, was with him on the briefs for appellee Jakel Motors, Inc.

The opinion of the court was delivered by

STEGALL, J.: The plaintiffs in this lawsuit—Corvias Military Living, LLC, and Corvias Military Construction, LLC—collectively form a construction firm specializing in building military housing.

VOL. 310 SUPREME COURT OF KANSAS 825

Corvias Military Living, LLC v. Ventamatic, Ltd.

Corvias built thousands of homes near Fort Riley in Geary County. In these homes, Corvias installed bathroom ceiling fans constructed by the defendants—Ventamatic, Ltd., and Jakel Mo- tors, Inc. After installation, several of the ceiling fans caught fire and damaged several homes. Corvias then sought to mitigate further damage by removing and replacing the remaining fans. This lawsuit followed. The district court entered summary judgment against Corvias, holding that the economic loss doctrine barred Corvias from recovery. Corvias appealed, and the Court of Appeals reversed. The panel reasoned that the economic loss doctrine did not bar Corvias from asserting a product liability claim because the property damage to the homes was not economic loss. We granted review.

FACTUAL AND PROCEDURAL BACKGROUND

Corvias is a military housing developer that built and now manages privatized family housing at Fort Riley, Kansas. During the construction phase, Corvias, through its subcontractors, purchased and installed approximately 3,785 "NuVent" bathroom ceiling fans into the Fort Riley homes. Ventamatic manufactures the NuVent model bathroom exhaust fans, and some of these fans were built with electric motors manufactured by Jakel. On June 12, 2012, a fire occurred in one of the homes. A defective electrical motor in a NuVent bathroom exhaust fan allegedly caused the fire. Corvias claims the fire caused $656.26 in damage. Then, another fire occurred in a different housing unit constructed by Corvias. Again, a defective electrical motor in a NuVent bathroom exhaust fan allegedly caused the fire. This fire caused extensive damage to the home including walls, ceiling, rafters, artwork, and personal property of the tenants. Additionally, the fire caused damage to the adjoining townhome. In total, this fire caused $88,994 in damages. But the fires were not the only problem Corvias had with the NuVent fans. Before the fires, Corvias allegedly experienced over 100 failed NuVent fans. So, following the second fire, Corvias removed the remaining 3,783 NuVent fans from its housing units and replaced them with a new brand of bathroom fans. This removal and replacement of the fans cost an estimated $459,027.

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Corvias Military Living, LLC v. Ventamatic, Ltd.

Corvias filed suit in Geary County District Court against Ven- tamatic, Jakel, and four other defendants. In Corvias' amended petition, Corvias asserted: (1) a product liability claim under the Kansas Product Liability Act; (2) claims for breaches of express and implied warranties of merchantability; (3) an unjust enrichment claim; (4) a claim under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.; and (5) breach of contract. Corvias sought $459,027.26 in damages for the removal and replacement of the 3,783 NuVent fans and $50,000 for property damage associated with the two fires—the amount of its insurance deductible. Corvias voluntarily dismissed its claims against the four other defendants—including all its breach of contract claims—with prejudice. Ventamatic and Jakel filed motions for summary judgment arguing the economic loss doctrine barred Corvias' product liability claims because the damages incurred were purely economic. Ventamatic also argued Corvias' warranty claims were barred because the express one-year warranty had lapsed and the parties lacked privity. The district court granted summary judgment to both Ven- tamatic and Jakel. The district court began by noting that the Kan- sas Product Liability Act (KPLA) governs all product liability claims in Kansas. The district court determined, therefore, that "the only claim plaintiffs brought against Ventamatic in this lawsuit is a product liability claim—regardless of how plaintiffs may have previously denominated their causes of action." The district court then held that the economic loss doctrine barred Corvias from recovering its removal and replacement costs. The district court noted that under Northwest Arkansas Ma- sonry, Inc. v. Summit Specialty Products, Inc., 29 Kan. App. 2d 735, 31 P.3d 982 (2001), removal and replacement costs fell under the economic loss doctrine. And because Corvias did not dispute that these costs were economic losses, the court held that the economic loss doctrine barred Corvias from recovering. The district court also held that the economic loss doctrine barred Corvias from recovering for any loss caused by the fires. The district court relied on the "integrated systems" rule to find the fire damage was likewise an economic loss not recoverable in a products liability claim. The integrated systems rule was adopted

VOL. 310 SUPREME COURT OF KANSAS 827

Corvias Military Living, LLC v. Ventamatic, Ltd. by the Kansas Court of Appeals in Northwest Arkansas Masonry, Inc., and posits that "'[d]amage by a defective component of an integrated system to either the system as a whole or other system components is not damage to "other property" which precludes the application of the economic loss doctrine.'" 29 Kan. App. 2d at 744 (quoting Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 249, 593 N.W.2d 445 [1999]). Applying this rule, the lower court reasoned that the fire damage to the homes was actually damage to the product itself and must therefore be considered a nonrecoverable economic loss. The district court considered the NuVent fans "integrated" component parts of the home—the home itself being the integrated system. Because the district court viewed the lawsuit as exclusively sounding in product liability, and because the court further found all purported damages to be economic losses, the court granted summary judgment in favor of Ventamatic and Jakel. Cor- vias appealed. On appeal, the Court of Appeals ably summarized the common-law development of the economic loss doctrine in Kansas:

"Economic loss is defined as 'loss of use of the defective product, cost of replacing the product, loss of profits to plaintiff's business, or damage to plaintiff's business reputation from use of the product.' Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 633, 827 P.2d 1195 (1992). Economic loss includes the 'loss of the bargain, repair, and replacement cost, loss of profits, and/or goodwill, including diminution in value.' In other words, economic loss is those damages that arise as a 'result of the failure of the product to perform to the level expected by the buyer, which is the core concern of traditional contract law.' Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 29 Kan. App. 2d 735, 742, 31 P.3d 982 (2001)." Corvias Military Living, LLC v. Ventamatic, Ltd., 54 Kan. App. 2d 169, 173, 397 P.3d 441 (2017).

The panel went on to discuss how the development of the economic loss doctrine was primarily driven by a concern to prevent contract law from "'drown[ing] in a sea of tort.'" 54 Kan. App. 2d at 174 (quoting East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 866, 106 S. Ct. 2295, 90 L. Ed. 2d 865 [1986]). In other words, at common law, economic loss damages are contract damages, not tort damages. This is because "a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring

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Corvias Military Living, LLC v. Ventamatic, Ltd. itself." East River S.S. Corp., 476 U.S. at 871. Because as a matter of law there is no duty to prevent a product from injuring itself, there can be no recovery for such damages under any tort theory, including a common-law product liability claim. Our Court of Appeals had previously explained that the economic loss doctrine is a "rule that is straightforward and predicta- ble and that establishes a logical demarcation between cases properly pursued as tort actions and those which are warranty claims." Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 205, 960 P.2d 255 (1998). The panel below then noted that this court has refused to apply the economic loss doctrine in the context of a tort claim when a duty actually exists as a matter of law. Corvias Military Living, LLC, 54 Kan. App. 2d at 176 (discussing Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 305 P.3d 622 [2013], and David v. Hett, 293 Kan. 679, 270 P.3d 1102 [2011]). With this as background, the Court of Appeals panel then turned to the question of the scope of the "product" itself. If Ven- tamatic and Jakel did not have a legal duty to prevent the bathroom fan from damaging itself, did Ventamatic and Jakel have a legal duty to prevent the fan from damaging the house? The answer to this question turns on the application of the integrated system rule and depends, essentially, on whether the "product" is the house as a whole, or only the discrete part of the house manufactured and sold by the defendants. On this score, the Court of Appeals disagreed with the district court's conclusion that the fans were an integrated part of the homes—that the homes themselves were the products and that Ventamatic and Jakel had no legal duty to prevent damage to the "product." Corvias Military Living, LLC, 54 Kan. App. 2d at 179. In reaching its conclusion, the panel relied on the Wisconsin Court of Appeals decision in State Farm Fire and Cas. Co. v. Hague Quality Water, 345 Wis. 2d 741, 826 N.W.2d 412 (2012). There, the Wisconsin court held that "a defective product must be integral to the function of the damaged property before the defective product and the damaged property may be considered part of the same integrated system." 345 Wis. 2d at 748.

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Corvias Military Living, LLC v. Ventamatic, Ltd.

The panel highlighted the use of the word "integral" noting that it "means '[e]ssential or necessary for completeness; constit- uent.'" Corvias Military Living, LLC, 54 Kan. App. 2d at 178 (quoting The American Heritage Dictionary 911 [5th ed. 2016]). The panel found that here, the "fans at issue . . . [were] not integral, necessary, essential, or indispensable to the functioning of the damaged housing units." 54 Kan. App. 2d at 179. As a result, the panel reversed the grant of summary judgment in favor of Ven- tamatic and Jakel with respect to the alleged property damage to the homes. The Court of Appeals, however, did not expressly address whether the claim for removal and replacement damages was still a viable part of Corvias' product liability cause of action. And neither did the panel consider Corvias' implied warranty claim separately:

"In light of our conclusion, it is unnecessary for us to address the issue of whether the bathroom exhaust fans were inherently dangerous. As the district court correctly noted, the Kansas Product Liability Act 'consolidates all product liability actions, regardless of theory, into one basis for liability.' Accordingly, we will not consider the implied warranty claim separately. [Citations omitted.]" 54 Kan. App. 2d at 179.

Thus, it is clear to us that the panel's decision left some uncertainty about the ongoing viability of Corvias' claim for recovery of the removal and replacement costs under either a product liability claim or some other claim. Ventamatic and Jakel filed a joint petition for review asking us to consider: (1) whether Kansas' "economic loss doctrine" and "integrated systems" rule bar Corvias from recovering for the damage to housing units; and—reflecting the above-noted ambiguity in the panel's decision—(2) whether Kansas' economic loss doctrine bars Corvias from recovering the costs to remove and replace the allegedly defective in-ceiling bathroom fans.

ANALYSIS

The summary judgment standard is well known and often stated:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that

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Corvias Military Living, LLC v. Ventamatic, Ltd. there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d 432 (2018).

At this stage of the litigation there are no disputed facts, only disputed questions of law. We exercise plenary judgment over such questions and likewise, to the extent we must interpret statutory language to resolve this case, our review is unlimited. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). Corvias seeks to recover money from Ventamatic and Jakel to compensate it for two different categories of expenses: (1) fire damage to the homes; and (2) the cost of removing and replacing the fans that did not catch on fire. In asserting these claims, Ven- tamatic pursued legal theories governed by the KPLA and other theories not governed by the KPLA. This accounts for much of the confusion in this case. In order to decide which categories of damages Ventamatic might be able to recover as a matter of law—and under which cause of action—requires us to first interpret the KPLA, K.S.A. 60-3301 et seq. Our interpretation is guided by the fundamental rule that the intent of the Legislature governs if it can be ascertained. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016). We attempt to ascertain this intent by giving common words their ordinary meanings. 304 Kan. at 409. When a statute is plain and unambiguous, an appellate court will not speculate about the legislative intent behind that clear language. 304 Kan. at 409. Only when a court discerns an ambiguity in the language chosen by the Legislature will the court resort to statutory construction to ascertain legislative intent. 304 Kan. at 409. In Kansas, the KPLA governs all product liability causes of action. The KPLA expressly defines both the scope of a product liability cause of action and the remedies available to plaintiffs pursuing such a cause of action:

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Corvias Military Living, LLC v. Ventamatic, Ltd.

"(c) 'Product liability claim' includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment or non- disclosure, whether negligent or innocent, or under any other substantive legal theory.

"(d) 'Harm' includes: (1) Damage to property; (2) personal physical injuries, illness and death; (3) mental anguish or emotional harm attendant to such personal physical injuries, illness or death. The term 'harm' does not include direct or consequential economic loss." K.S.A. 60-3302(c)-(d).

Ventamatic and Jakel argue first that all of Corvias' claims are subsumed into one "product liability claim" according to the statute, and that because the economic loss doctrine applies to product liability claims, it bars all of Corvias' claims. Ventamatic and Jakel argue these provisions codify the common-law economic loss doctrine, including the integrated systems rule. While we agree that K.S.A. 60-3302(d) codifies a version of the economic loss doctrine, it is a modified version. Because the KPLA crowds both tort-based theories of recovery under the same umbrella as warranty-based theories of recovery, the major impe- tus behind the common-law development of the economic loss doctrine—to push claims for economic losses out of the tort arena and back into the contract arena—has been at least partially rejected by the Legislature. It makes sense, then, that the KPLA would include "damage to property" in its definition of damages that are recoverable. K.S.A. 60-3302(d)(1). Giving these words their ordinary meaning, it is clear the Legislature intended to allow recovery for damage to any property, even damage to the product itself. This simplified statutory approach finds further support in the Model Uniform Products Liability Act (MUPLA), upon which the KPLA was modeled. See Gaumer v. Rossville Truck & Tractor Co., 292 Kan. 749, 753, 257 P.3d 292 (2011). The MUPLA explains that "the term [harm] also includes damage to the product itself." 44 Fed. Reg. 62,719 (October 31, 1979). In sum, the economic loss doctrine in Kansas does not preclude the recovery of property damage—even property damage to the product itself—

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Corvias Military Living, LLC v. Ventamatic, Ltd. within a product liability cause of action. To the extent this is a modification of the common-law economic loss doctrine within the scope of a product liability cause of action, it is a modification that is within the power of the Legislature to make. See Hilburn v. Enterpipe Ltd., 309 Kan. 1127, 1136, 442 P.3d 509 (2019) ("it is within the power of the Legislature to modify the common law"). In this statutory framework, whether the property is part of an integrated system is irrelevant. But within the scope of a product liability cause of action, the KPLA does codify a version of the economic loss doctrine by simply excluding from the definition of harm "any direct or consequential economic loss." K.S.A. 60-3302(d). Resolving this case does not require us to engage in a drawn-out discussion of this statutory phrase because Corvias has conceded that its removal and replacement costs are economic losses under K.S.A. 60-3302(d). Therefore, they are statutorily excluded from the category of "harm" that can be recovered in a product liability action. The question then arises, did Corvias assert any claim outside the scope of the KPLA? Indeed, there is a logical circularity to the KPLA. First, "direct or consequential economic loss" is excluded from the definition of "harm" in the statute. Second, the statute expressly defines the scope of a product liability cause of action in terms of the harm caused—"'Product liability claim' includes any claim or action brought for harm caused by . . . ." K.S.A. 60-3302(c). By definition, then, any cause of action that lawfully seeks to recover direct or consequential economic loss is not a product liability claim and is not governed by the KPLA. Thus, the Legislature has not cast the product liability net so wide as to subsume and extinguish other legally viable causes of action for the recovery of economic losses. A full accounting of legally viable causes of action for the recovery of economic losses is beyond the scope of this case. Though certainly, a pure contract claim may be a viable path to recovering economic losses. And though Corvias did not assert any pure contract claims against these defendants, it did assert a claim for unjust enrichment.

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Corvias Military Living, LLC v. Ventamatic, Ltd.

Unjust enrichment is a modern version of the older doctrine of quasi-contract. Haz-Mat Response, Inc. v. Certified Waste Ser- vices Ltd., 259 Kan. 166, Syl. ¶ 5, 910 P.2d 839 (1996). The basis of an unjust enrichment claim "'lies in a promise implied in law that one will restore to the person entitled thereto that which in equity and good conscience belongs to that person.'" University of Kansas Hosp. Auth. v. Board of Wabaunsee County Comm'rs, 299 Kan. 942, 960, 327 P.3d 430 (2014) (quoting Haz-Mat Response, Inc., 259 Kan. 166, Syl. ¶ 5). Like a contract claim, a quasi-contract arises when one party has conferred a benefit to the other without just compensation. Rather than granting the aggrieved party relief under a contractual obligation, unjust enrichment awards compensation out of justice and equity. 299 Kan. at 960. We are unable to discern from the record before us whether some or all of the amounts Corvias claims as removal and replacement damages are legally recoverable in an unjust enrichment cause of action. If Corvias can prove the elements of its unjust enrichment claim with respect to these claimed damages, neither the economic loss doctrine nor the KPLA would bar that recovery. Therefore, we affirm the Court of Appeals decision to reverse the lower court's grant of summary judgment to the defendants with respect to any property damage, albeit for a different reason. See Trear v. Chamberlain, 308 Kan. 932, 933, 425 P.3d 297 (2018) (affirming the Court of Appeals as right for the wrong reason). We reverse the implicit holding of the Court of Appeals that Corvias' claim for removal and replacement damages is subsumed into its product liability claim and barred by the economic loss doctrine. And we remand to the district court for further proceedings consistent with this judgment.

Affirmed in part, reversed in part, and remanded with directions.

1 LUCKERT, BEIER, and JOHNSON, JJ., not participating.

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 116,307. Justice Johnson retired effective September 6, 2019.

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Corvias Military Living, LLC v. Ventamatic, Ltd.

2 J. CHARLES DROEGE, District Judge, assigned.

JEFFRY J. LARSON, District Judge, assigned.3

2REPORTER'S NOTE: District Judge Droege was appointed to hear case No. 116,307 vice Justice Luckert under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

3REPORTER'S NOTE: District Judge Larson was appointed to hear case No. 116,307 vice Justice Beier under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

VOL. 310 SUPREME COURT OF KANSAS 835

State v. Johnson

No. 116,453

STATE OF KANSAS, Appellee, v. RYAN ROBERT JOHNSON, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sufficiency of Evidence Challenge—Alternative Means for Committing Crime in Jury Instruction. If a criminal defendant challenges sufficiency of the evidence on appeal in a case in which a district court instructed a jury on alternative means of committing a crime, the State must establish that it presented sufficient evidence of both alternatives.

2. SAME—Sufficiency of Evidence Challenge—Appellate Review. When a criminal defendant challenges the sufficiency of evidence on appeal, an appellate court reviews the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations about witness credibility.

3. STATUTES—Provision in K.S.A. 2018 Supp. 21-5415(a)(1) Held Uncon- stitutionally Overbroad. The provision in K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad because it punishes conduct that is constitutionally protected under some circumstances.

4. CONSTITUTIONAL LAW—Due Process Clause Protections. The Due Process Clause of the Fourteenth Amendment to the United States Consti- tution protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged.

5. APPEAL AND ERROR—Harmless Error Standard of Review. A constitutional error is harmless if the State can demonstrate beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 15, 2017. Appeal from Montgomery District Court; JEFFREY D. GOSSARD, judge. Opinion filed October 25, 2019. Judgment of the Court of Ap- peals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

Clayton J. Perkins, of Capital Appellate Defender Office, was on the briefs for appellant.

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State v. Johnson

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

LUCKERT, J.: A jury convicted Ryan Robert Johnson under the Kansas criminal threat statute of intentionally placing another in fear or of making a threat in reckless disregard of causing fear. He appealed, and we consider two issues. First, does sufficient evidence support Johnson's conviction for making a criminal threat? Because Johnson's conviction rests on the alternative means of committing the crime by acting either intentionally or recklessly, we must examine the sufficiency of the evidence relating to both mental states. Upon review of the record, we hold the evidence is sufficient. Johnson's second issue asks: Is the reckless criminal threat alternative in Kansas' criminal threat statute, K.S.A. 2018 Supp. 21-5415(a)(1), unconstitutionally overbroad? We fully discuss this issue in State v. Boettger, 310 Kan. 800, 450 P.3d 805 (2019), and hold that the making-a-threat-in-reckless-disregard alternative is unconstitutionally overbroad. Applying that holding here, we reverse Johnson's conviction and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The Montgomery County Sheriff's office received a request to check the welfare of Vickie Walker because of allegations that she was being abused by Johnson, her son. An officer called Walker, who reported that Johnson had been causing problems in her home and she was afraid for her safety. But she was "pretty nonspecific," so the officer took no action beyond taking the report. A few nights later, Walker called 911 and requested an officer come to her home. Deputy Jacob Garcia responded to the call. Johnson was not present when Deputy Garcia arrived. Walker told Deputy Garcia she came home and found Johnson and his wife arguing. She reported that her daughter-in-law went into another room and locked the door to get away from Johnson, but he kicked the door open. Deputy Garcia noticed a metal clasp on the door was broken and

VOL. 310 SUPREME COURT OF KANSAS 837

State v. Johnson there was a crack running down the door as if it had been forced open. He also saw damage to the door frame. He took pictures of the damage that the jury viewed during the trial. While Deputy Garcia was at the house, Johnson called his mother. The deputy asked Johnson to return, but Johnson stayed away. The next morning Johnson returned to Walker's home and another incident occurred that led to another 911 call. Deputy Chris- topher Bishop and another officer responded. Deputy Bishop interviewed Walker and recorded the interview on his body camera. She reported that Johnson had forced his way into her home, ripped the phone out of the wall, and said, "'Try to call the sheriff now, bitch.'" She also stated that Johnson told her, "'Bitch, if I'm going to be on the streets, then you're going to be on the streets because I'm going to burn your shit up. Then I'm going to be back this afternoon and you ain't going to like what I'm bringing for you.'" According to Walker, Johnson then said, "'I hate you, Mom, you fucking bitch. I wish you would die, but don't worry about it because I'm going to help you get there. I'm going to fucking kill your ass. I hate what you do to me.'" Deputy Bishop used the recording from his body camera to write his report. He played and paused the video, rewinding it several times to ensure he accurately quoted Walker's statements. The video was lost before trial, however. The other sheriff's officer who responded to the call heard the conversation between Walker and Deputy Bishop. He wrote a report either the same day or the day after the conversation, noting that Walker said Johnson pulled the phone out of the wall and threatened to kill her and burn her house down. The State charged Johnson with one count of criminal damage to property based on the damage allegedly done to the door the night of the fight between Johnson and his wife. It also charged him with criminally threatening Walker the next day when he allegedly tore the phone off the wall and threatened to burn Walker's house and kill her. During Johnson's trial, both Walker and John- son's wife downplayed the two incidents. They both testified the family commonly threatened to kill each other but did not mean it. Walker also testified she did not recall what she said to any

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State v. Johnson officer, other than telling Deputy Garcia she wanted to get John- son out of her house. She explained that she took medicine that cause her to be confused and she could not remember what John- son said to her. Walker testified that at the time of this incident, Johnson had a broken neck and had a metal halo device screwed into the bones of his skull. He was in pain and taking pain medication. As a result, he often had angry outbursts. Walker said she grabbed the halo device during the first incident to try to stop the fight and hurt him in the process. At that time, he became angry with her and felt she was taking his wife's side. Walker also testified that she heard the officers' testimony at trial and was confused by it because she did not remember what had happened or what she had said to the officers. She stated she would have been truthful with the officers and told them what she thought had happened to the best of her abilities. But she thought they may have misinterpreted what she said because she was in a highly excited state and had been discharged from the hospital two days earlier and was still under the effect of morphine. Johnson denied breaking the door and said it had been broken for a long time. He admitted there had been an argument in Walk- er's home, but he claimed he did not threaten anyone. And he denied making the quoted threats. The jury heard a recording of Walker's first 911 call made the evening Johnson and his wife were fighting. The voices of a man and woman arguing can be heard on the recording. The woman can be heard saying that John- son kicked the door open and threw the lock out the window. The man replied, "I didn't." The jury acquitted Johnson of the criminal damage to property charge but convicted him of criminal threat. He was sentenced to 14 months' imprisonment with 12 months' postrelease supervision. Johnson timely appealed. Before the Court of Appeals, he argued: (1) the district court erred when it denied his motion to dismiss based on the 180-day speedy trial requirement under the In- terstate Agreement on Detainers; (2) the State did not present sufficient evidence to find Johnson guilty of criminal threat beyond a reasonable doubt; (3) the failure to give a voluntary intoxication

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State v. Johnson jury instruction was clearly erroneous; and (4) the reckless form of criminal threat is unconstitutionally overbroad. The Court of Appeals held no trial errors occurred, and it affirmed Johnson's conviction and sentence. See State v. Johnson, No. 116,453, 2017 WL 6397060, at *1 (Kan. App. 2017) (unpublished opinion). Johnson petitioned for this court's review of the Court of Ap- peals' decision. We granted his request but only in part. We have jurisdiction under K.S.A. 20-3018(b) (petition for review of Court of Appeals' decision).

ANALYSIS

In granting Johnson's petition in part, we accepted review of his second and fourth issues: Whether the evidence was sufficient and whether the reckless disregard provision in the criminal threat statute was constitutional.

Sufficient evidence

As noted, the State charged Johnson with intentionally or recklessly making a criminal threat. The district court instructed the jury on both mental states. And the jury received a verdict form that simply asked for a determination of whether Johnson committed the crime of a criminal threat without asking the jury to indicate whether it unanimously concluded Johnson acted intentionally or recklessly. Johnson now argues the State must establish that the evidence of both means is sufficient to support the verdict because it charged him with alternative means of committing the crime, the court instructed on both means, and the State did not elect one means or the other. He then argues the State failed to meet that burden. Johnson is correct on the first point about the State having to establish sufficient evidence of both mental states. By defining criminal threat as either an intentional or a reckless act, the Legis- lature created alternative means of committing the offense. When the district court has instructed the jury on alternative means of committing a crime, on appeal the State must establish that it presented sufficient evidence of both means to ensure the jury's verdict is unanimous. See State v. Williams, 303 Kan. 750, 759-61,

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State v. Johnson

368 P.3d 1065 (2016). But we disagree with Johnson on the second point and, instead, hold that the State presented sufficient evidence of both alternative means. "'When the sufficiency of evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.'" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In making a sufficiency determination, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.'" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016). The Court of Appeals panel correctly found that when viewed in a light most favorable to the State, the evidence supported John- son's criminal threat conviction. Johnson asked the panel and now asks us to focus on Walker's inability to remember the specific words of any threat he allegedly made. The panel appropriately rejected that narrow focus and discussed the multiple statements Walker made to the sheriff's officers about Johnson's actions and violent behavior. Although Walker did not recall these statements at trial, she did not dispute the accuracy of the officers' testimony. And she admitted she would have tried to be truthful when giving officers her statements. The panel concluded the evidence of what Walker told officers at the time of the events showed Walker was, in fact, threatened by Johnson's statements. Johnson, 2017 WL 6397060, at *4. And in seeking our review, Johnson does not dispute that aspect of the panel's analysis. In fact, Johnson does not address any specific point in the panel's decision. Instead, he generally "argues the Court of Appeals erred for the same reasons argued in his initial brief." He essentially asks us, as he did the Court of Appeals, to reweigh the evidence. But appellate courts do not reweigh evidence. See Dunn, 304 Kan. at 822. Here, when viewed in the light most favorable to the State, the language Johnson used and the circumstances in which he threatened to kill Walker and burn down her house provide sufficient evidence of either an intentional or a reckless threat. See Williams,

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State v. Johnson

303 Kan. at 762-63 (intent to threaten can be inferred from the circumstances). Focusing first on the sufficiency of the evidence that Johnson acted intentionally, the timing of the second incident provides compelling circumstantial evidence that Johnson intentionally threatened Walker. The evening before, Johnson had been fighting with his wife when his mother became involved. She, in turn, involved the sheriff's department, and although Johnson was not present when the officers arrived, he was aware they had investigated Walker's complaint. The next morning, Johnson pulled his mother's phone off the wall and expressed his anger about her talking to the officers and trying to get him out of her house. A reasonable jury could have concluded he acted with the intent to keep his mother from (1) calling 911 again and (2) kicking him out of her house. To coerce her cooperation, he made threats of violence to "'burn [her] shit up'" and to "'kill [her] ass.'" The time and context in which Johnson allegedly made these statements provides sufficient evidence to support a conviction for intentional criminal threat. A reasonable fact-finder could convict Johnson based on the evidence presented by the State. As to the sufficiency of the evidence about recklessness, K.S.A. 2018 Supp. 21-5202(c) provides: "Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally." Thus, under this statute, because the State provided sufficient evidence that Johnson acted intentionally it also presented sufficient evidence of a reckless mental state. The State presented sufficient evidence to support a conviction of either intentional or reckless criminal threat.

Constitutionality of reckless criminal threat

Johnson next challenges the constitutionality of the reckless threat provision of K.S.A. 2018 Supp. 21-5415(a)(1). He argues the provision is unconstitutionally overbroad. His arguments are nearly identical to those we addressed in State v. Boettger, 310 Kan. 800, 450 P.3d 805 (2019).

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State v. Johnson

As we explain more fully in Boettger, the United States Su- preme Court has held that the government may regulate "true threats" without infringing on rights protected by the First Amend- ment to the United States Constitution. And that Court has stated: "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). In Boettger, we hold that the reckless disregard provision encompasses more than true threats and thus potentially punishes constitutionally protected speech. The reckless disregard provision is thus overbroad and unconstitutional. Boettger, 310 Kan. at 818-23.

Reversibility

In Boettger, where the conviction was based solely on the reckless disregard provision, we reversed the conviction. 310 Kan. at 823. The question of reversibility is not as simple here because the jury's verdict rested on the alternative means of either an intentional or a reckless mental state. See Williams, 303 Kan. at 759- 61. The State argues we should affirm the conviction because the evidence that Johnson acted intentionally was very strong. John- son responds that the State failed to preserve that argument before the Court of Appeals. The preservation argument is not as straightforward as Johnson suggests, but we need not labor through an explanation of the point because we agree with his contention that his conviction must be reversed. In reaching this conclusion, we apply the constitutional harmless error standard. In doing so, we reject the State's argument that the statutory standard should apply because the error implicates Johnson's statutory right to a unanimous verdict. See K.S.A. 22- 3421; see also State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011) (explaining difference between statutory and constitutional harmless error standard). That argument ignores the potential im- plication of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Due Process Clause implications arise because the jury convicted Johnson, at least in the alternative, of a statutory provision

VOL. 310 SUPREME COURT OF KANSAS 843

State v. Johnson that is unconstitutional. And a person cannot be constitutionally convicted under a constitutionally invalid statute. See generally Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). In addition, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Here, for Johnson's conviction to be constitutional, the State must have convinced the jury beyond a reasonable doubt that Johnson intentionally made the criminal threat. But it is unclear that the jury convicted Johnson on proof beyond a reasonable doubt that Johnson acted intentionally. We thus apply the constitutional harmless error standard. A constitutional error is harmless if the State can show "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict." Ward, 292 Kan. 541, Syl. ¶ 6; see also Chap- man v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (defining the constitutional harmless error standard). The State has not met that standard. The district court instructed the jury on both forms of criminal threat and accurately recited the definitions of "intentionally" and "recklessly" in K.S.A. 2018 Supp. 21-5202(h) and (j). But neither the jury instructions nor the State's arguments steered the jury toward convicting Johnson based solely on one mental state or the other. Nor did the judge instruct the jury it had to agree unanimously on whether Johnson acted intentionally or recklessly. And the verdict form did not require the jury to make a specific finding. Thus, the record provides no basis for us to discern whether the jury concluded that the State had proved beyond a reasonable doubt that Johnson acted intentionally. Nor, despite the State's argument, does a review of the evidence. The State asserts that given Johnson's threat to kill his mother, "[n]o jury would find this threat was anything other than intentionally made with the intent to place another in fear." But the State fails to address conflicting evidence at trial, particularly Walker's testimony that the family routinely threatened to kill

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State v. Johnson each other but no one took it literally. Walker also testified she did not recall Johnson threatening to kill her or burn down the house. And she thought the officers may have misinterpreted what she said because she was in a highly excited state and had been discharged from the hospital two days earlier and was still under the effect of morphine. Walker also made it clear she was motivated to have her son leave her home. A reasonable juror could thus conclude she exaggerated the situation to obtain legal help in keeping her son away. Given these circumstances, a reasonable fact-finder may have determined there was some discrepancy between what Johnson said to Walker and what she reported to the officers. The jury was free to determine Walker's credibility and decide what weight to give to her testimony. If it believed that Johnson did not intend such threats to be taken literally but that Walker was genuinely fearful when she called for law enforcement assistance, it could have believed the statements were made with a reckless disregard for whether they caused fear. See State v. Ras- kie, 293 Kan. 906, 920-21, 269 P.3d 1268 (2012) (recognizing jury's role in weighing conflicting statements and determining credibility). The State has not addressed this possibility and has not met its burden of proving the error harmless beyond a reasonable doubt. Accordingly, we reverse Johnson's conviction, vacate his sentence, and remand the case to the district court for a new trial. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

1 JOHNSON, J., not participating.

* * *

STEGALL, J., dissenting: I agree with the majority that the "provision in K.S.A. 2018 Supp. 21-5415(a)(1), allowing for a

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 116,453. Justice Johnson retired effective September 6, 2019.

VOL. 310 SUPREME COURT OF KANSAS 845

State v. Johnson conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad" because it can punish constitutionally protected speech in some circumstances. 310 Kan. 835, Syl. ¶ 3. But I would not reverse Johnson's conviction. Instead, borrowing from the modified harmlessness analysis articulated by Justice Nancy Moritz in State v. Brown, 295 Kan. 181, 216-28, 284 P.3d 977 (2012) (Moritz, J., concurring), I would find the constitutional error is harmless. Certainly, as the majority notes, "a person cannot be constitutionally convicted under a constitutionally invalid statute." 310 Kan. at 843. So Johnson cannot be convicted of recklessly violating K.S.A. 2018 Supp. 21-5415(a)(1). And if that were the conviction we were reviewing the case would be simple and straightforward. As the majority points out, however, the "question of reversibility is not as simple here because the jury's verdict rested on the alternative means of either an intentional or a reckless mental state." 310 Kan. at 842. Again, I agree with the majority that in this circumstance, we must apply a constitutional harmless error standard and determine whether the State can show "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict." State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011); 310 Kan. at 843. To answer this question, the majority pivots back to a mode of analysis borrowed from our alternative means sufficiency test and asks how we can be sure the jury relied on the constitutional "intentional" portion of the statute rather than the unconstitutional "reckless" portion. The majority observes that "neither the jury instructions nor the State's arguments steered the jury toward convicting Johnson based solely on one mental state or the other." 310 Kan. at 843. And the jury wasn't instructed that it had to unanimously agree on either intentional or reckless conduct. 310 Kan. at 843. Finally, the verdict form did not require a finding by the jury either way. 310 Kan. at 843. All this is true. In the face of such uncertainty, the majority turns to the evidence itself to discern whether a reasonable juror

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State v. Johnson could have decided from the evidence that Johnson acted recklessly rather than intentionally. The majority essentially reasons that if there is any reasonable possibility that a single juror could have reached the conclusion that Johnson acted recklessly but not intentionally, then the State has failed to carry its burden to demonstrate beyond a reasonable doubt that the constitutional error did not contribute to the verdict. I agree that this is the question we must ask. I part ways with the majority only in its analysis of the evidence. Because our analytical path here is significantly influenced by the reasoning that informs our alternative means sufficiency test, I would borrow from Justice Mortiz' modified alternative means harmlessness analysis set forth in her concurring opinion in Brown. It is true that the reversibility question presented here is not strictly an alternative means question—there are significant differences, particularly because here the State carries a higher burden in order to sustain the conviction. Still, when a jury is instructed on an unconstitutional alternative means of committing a crime, if there is "sufficient evidence of [a constitutional] alternative means but no evidence or argument regarding [the unconstitutional] means" then there is "no possibility of jury confusion[]" and we can be confident that the error did not contribute to the verdict. Brown, 295 Kan. at 216 (Moritz, J., concurring). The significant overlapping inquiry in both instances is jury confusion or, put differently, appellate uncertainty about which of two possible routes to conviction were taken by the jury. As the majority has it, "it is unclear that the jury convicted Johnson on proof beyond a reasonable doubt that Johnson acted intentionally." 310 Kan. at 843. Relying on Justice Moritz' Brown approach, I disagree. Instead, after a thorough review of the evidence below, I conclude there is no evidence that Johnson acted recklessly. The evidence relied on by the majority to suggest a reasonable juror could have convicted Johnson of recklessly making a threat is actually evidence of innocence, not recklessness. As recounted earlier in the majority opinion, the State presented significant evidence that Johnson acted intentionally. One witness testified that Walker told him Johnson "specifically

VOL. 310 SUPREME COURT OF KANSAS 847

State v. Johnson threated to kill [Walker] and burn down the house." Another detailed Johnson's comment to Walker, "I wish you would die, but don't worry about it because I'm going to help you get there. I'm going to fucking kill your ass." The State's closing arguments likewise only presented an intentional threat case to the jury. Crucially, Walker's testimony that her family used the term "kill" colloquially would suggest that Johnson's statement was not a threat at all. Similarly, her testimony that she did not remember Johnson making any threatening statements is evidence of innocence, not recklessness. Walker's statements that police misunder- stood her and that she was on morphine when she spoke with de- tectives, along with any conclusion that she was motivated to "ex- aggerate[] the situation to obtain legal help," all present evidence that no threat was actually made. 310 Kan. at 844. Certainly it is true that "[t]he jury was free to determine Walk- er's credibility and decide what weight to give to her testimony." 310 Kan. at 844. But in my view, the evidence is not consistent with the hypothetical possibility relied on by the majority that Walker may have been "genuinely fearful" but that "Johnson did not intend [his] threats to be taken literally." 310 Kan. at 844. In- stead, had any reasonable juror believed Walker, the only conclusion that juror could have reached based on the evidence would have been that Johnson was not guilty. Because the State presented no evidence of a reckless threat to the jury, we can be confident that the jury convicted Johnson of making an intentional threat. The constitutional error did not contribute to the verdict. I would affirm Johnson's conviction.

BILES, J., joins the foregoing dissenting opinion.

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State v. Dean

No. 116,568

STATE OF KANSAS, Appellee, v. MARQUEL D. DEAN, Appellant.

___

SYLLABUS BY THE COURT

1. APPELLATE PROCEDURE—Burden on Appellant to Furnish Record Showing Prejudicial Error—Appellate Review. An appellant has the burden to furnish a record that affirmatively shows prejudicial error, and without such a record, an appellate court presumes the actions of the district court were proper.

2. TRIAL—Testimony of Noninformant Witness—Jury Instruction Not Re- quired. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is testifying in exchange for benefits from the State.

3. CRIMINAL LAW—Motion for New Trial—Defendant's Burden of Proof. To grant a motion for new trial based on newly discovered evidence, a district court must determine that (1) the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial, and (2) the evidence is of such materiality that it would be likely to produce a different result upon retrial.

4. APPEAL AND ERROR—Gang Affiliation Evidence—Admissibility—Rel- evance—Appellate Review. On these facts, gang affiliation evidence was relevant to prove the disputed facts of identity, motive, and premeditation; it was probative to explain otherwise inexplicable events surrounding the murder; and it was not unduly prejudicial because the district court gave a proper limiting instruction.

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed October 25, 2019. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, argued the cause and was on the brief for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: This case arises from a retaliatory gang shooting in Sedgwick County. Marquel D. Dean, a member of the Crips, walked into a party with another Crip, and the two shot and killed

VOL. 310 SUPREME COURT OF KANSAS 849

State v. Dean a member of the Bloods. Their bullets also injured four bystanders. Dean was convicted of premeditated murder, four aggravated batteries, and criminal possession of a firearm. On direct appeal, Dean challenges: (1) the denial of his motion for mistrial based on juror misconduct; (2) the failure to instruct the jury to view with caution the testimony of a witness for benefits; (3) the denial of his motion for new trial based on newly discovered evidence; (4) the sufficiency of the evidence; and (5) the admission of gang affiliation evidence. He also claims cumulative error denied him the right to a fair trial. Holding there was no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2013, Montreal Rambo, a member of the Crips gang, was shot in the leg while he was standing outside a restaurant in Wichita. Rambo's leg had to be amputated and from then on he used a wheelchair. The word on the street was that a member of the Bloods gang named James Gary, also known as "Bird," had shot Rambo. About a month later, Chamay Ross, Gary's girlfriend, went out to a bar named the Drunken Monkee with her cousin, Ashley Thomas. At that time, Thomas was in a relationship with Dean, a Crip known as "Crush Tre" or "C-3." Many Crips were at the Drunken Monkee that night, including Rambo and Dean, who were close friends. After the bar closed about 2 a.m., Ross and Thomas went to a large party in the garage of a building. Gary typically attended parties at this location, along with other Bloods. The party had about 100 attendees, and it spilled out of the garage into the parking lot. After the two women arrived, Ross spotted Gary and brought him a drink. She recalled that Gary was easy to find in a crowd because he was tall. Gary told her to leave because the Crips were coming, but she stayed. Meanwhile, Thomas kept using Ross' phone to call someone—who turned out to be Dean. Around 3 a.m., Dean and Shane Landrum, a Crip known as "Tall Can," walked into the party together. Gary told a Bloods member next to him, "There go Crush Tre and Tall Can." When Dean and Landrum got close to Gary, shots were fired. Gary was hit four times and later died. Another burst of shots sprayed the

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State v. Dean crowd from the same direction, injuring Thomas and three others. As Dean ran away, a Folk Tru Boy gang member named Davori- ous Holloman shot back at him. Generally, the Bloods wear red and the Crips wear blue. But Ross, along with several other witnesses, saw Dean walk into the crowd wearing a red outfit. One witness testified that Dean was wearing a plaid shirt when he first arrived but was wearing a red shirt when he approached Gary. She recalled that Gary took a "fighting position" but was not holding a gun. She said Dean shot Gary from a few feet away. Several witnesses reported that "C-3" was the shooter or that the shooter was wearing red. Travis Rogers, a Bloods member, shook Gary's hand moments before the initial shots were fired. Rogers was shot twice in the stomach and found lying next to Gary. Rogers told a bystander that "C-3" shot him. He later testified that Dean also shot Gary. The eyewitness and ballistic evidence revealed that three guns were fired at the party that night. Witnesses reported that Dean and Landrum fired toward Gary, and Holloman shot back while they fled. No guns were found at the scene, but law enforcement later obtained Holloman's gun in a separate case, and it matched some of the shell casings found at the scene. The bullets recovered from the victims did not come from Holloman's gun. Dean fled the state and was apprehended in Texas. The State charged him with premeditated murder for killing Gary; four counts of aggravated battery for shooting the bystanders; and one count of criminal possession of a firearm. The most contested witness at trial was Charles Steele, Gary's close friend and Bloods associate. At the time of trial, Steele was in federal custody for bank robbery. Steele admitted that he had pled guilty in the federal case and was hoping to get a reduced sentence for testifying at Dean's trial. Steele explained that the rivalry between the Bloods and the Crips escalated after Rambo was shot. At the garage party, Steele was standing near Gary when the shooting started. Steele recalled that someone saw the Crips coming and tapped Gary. But, Steele testified, "[b]efore [Gary] could even try to turn and run . . . C-3

VOL. 310 SUPREME COURT OF KANSAS 851

State v. Dean already ran and was shooting," and Holloman returned fire. Steele recalled that Dean was dressed in red when he shot Gary. The jury convicted Dean of premeditated murder, four aggravated batteries, and criminal possession of a firearm. The district court imposed a hard 25 life sentence for premeditated murder and a consecutive 257-month sentence for the remaining crimes. On appeal directly to this court, Dean argues the district court erred when it failed to declare a mistrial after a juror took notes outside of court; refused to instruct the jury to view with caution the testimony of a witness for benefits; and denied his motion for new trial based on newly discovered evidence about Steele's plea deal. Dean also claims the evidence of premeditation was insufficient; the evidence of gang affiliation was inadmissible; and cumulative error denied him the right to a fair trial. We exercise jurisdiction over Dean's appeal because he received a life sentence for premeditated murder. See K.S.A. 2018 Supp. 22-3601(b)(3).

ANALYSIS

On his mistrial claim, Dean failed to designate a record that shows prejudicial error.

Dean claims the district court erred when it denied his motion for mistrial after a juror committed prejudicial misconduct. A district court judge may order a mistrial when "[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution." K.S.A. 22-3423(1)(c). Under K.S.A. 22-3423(1)(c), a district court must engage in a two-step analysis:

"First, the trial court must decide if '"there is some fundamental failure of the proceeding."' If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an 'injustice.' This means . . . that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by an admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. [Citations omitted.]" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

We review a district court's decision to deny a motion for mistrial for abuse of discretion. 292 Kan. at 550. Judicial discretion is abused if the court's action is arbitrary, fanciful, or unreasonable;

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State v. Dean based on an error of law; or based on an error of fact. 292 Kan. at 550. Dean, as the party alleging error, bears the burden of proving his substantial rights to a fair trial were prejudiced. See State v. Foster, 290 Kan. 696, 717, 233 P.3d 265 (2010). Partway through jury deliberations, the presiding juror ("Juror 7") brought a notebook from home into the jury room and asked the district court if he could show his notes, taken outside trial, to the other jurors. The court dismissed Juror 7 for reasonable cause because he violated a pretrial admonition against notetaking and bringing outside material into deliberations. Then the court questioned the remaining jurors individually. Each juror denied taking notes or seeing notes taken by another juror. As Juror 7 left the building, he handed a partially completed but unsigned verdict form to the district court's aide. The court showed the verdict form to the parties off record. Back on the record, the court said there were "two markings" on the verdict form, but, the contents were not read into the record. Thus we do not know what the "markings" indicated. After the court showed the verdict form to the parties, defense counsel promptly moved for a mistrial. Defense counsel argued the partial verdict form proved that prejudice occurred because Juror 7 exerted a special influence over the jury:

"If this individual is in there and has now persuaded the jury to a certain number of facts, then they have been prejudiced by his persuading, whether it was referenced to notes or not referenced to notes, it was his contribution to the discussion that has led this jury to wherever they are at."

In other words, defense counsel claimed Juror 7 influenced the partial verdict and the jury could not "un-ring" the bell and start deliberations over. The district court denied the motion for mistrial; replaced Ju- ror 7 with an alternate; issued a curative instruction; ordered the new jury to start deliberations over; and sent the jury back with a new verdict form. The court believed there was no substantial prejudice because, after extensive questioning, it found no evidence that the jury was tainted by Juror 7's notetaking.

VOL. 310 SUPREME COURT OF KANSAS 853

State v. Dean

On appeal, the parties do not dispute that Juror 7 committed misconduct or that the district court had reasonable cause to dismiss and replace him. See K.S.A. 2018 Supp. 22-3412(c); State v. Haislip, 237 Kan. 461, 468-69, 701 P.2d 909 (1985) (holding that a district court may dismiss and substitute a juror after deliberations have begun for reasonable cause). But Dean argues the district court should have granted his motion for mistrial because the damaging effect of Juror 7's misconduct could not be mitigated. Precisely, he claims the partial verdict form—which was reached with Juror 7's input—incurably tainted the jury, and as a result, the jury could not start deliberations over with a clean slate. Thus, the parties only dispute whether the degree of prejudice required a mistrial. See Ward, 292 Kan. at 550. Crucially, the partial verdict form is not in the record on appeal. Thus we do not know what the "two markings" on the verdict form were, and we will not speculate about their impact on the jury. Dean has the burden "to furnish a record that affirmatively shows prejudicial error," and he failed to do so by omitting the partial verdict form from the record. State v. Warren, 302 Kan. 601, 616, 356 P.3d 396 (2015). "[W]ithout such a record, we presume the actions of the trial court were proper." 302 Kan. at 616. On these facts, we cannot conclude that Dean's substantial rights were prejudiced, and as a result, we affirm the denial of Dean's motion for mistrial.

A jury instruction to view with caution the testimony of a witness for benefits was not legally required.

Next, Dean argues the district court erred when it failed to instruct the jury to view with caution the testimony of a witness for benefits. At the jury instruction conference, defense counsel asked for what he called a "cooperating witness" instruction because Steele's testimony was given in exchange for the possibility of a reduced sentence in his federal case. Defense counsel did not pro- pose specific language for the instruction but explained, "I thought there was a PIK on it. . . . [I]t's similar to the co-defendant testimony or 'a person who has worked a deal' testimony, that caution should be used with respect to evaluating their testimony." The

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State v. Dean district court denied the motion, reasoning that "there are instructions . . . that will cover how the parties are to view the testimony of all the witnesses"; "Mr. Steele was cross-examined"; and "the defense can argue . . . what they are trying to accomplish with a cautionary instruction." Defense counsel did not object to this ruling. We recently summarized the stair-step analysis for jury instruction challenges:

"'Generally, an appellate court reviewing a jury instruction challenge must determine whether the issue was preserved; whether the instruction was legally and factually appropriate; and whether any error was harmless.' State v. Barrett, 309 Kan. 1029, 1036-37, 442 P.3d 492 (2019). Preservation and reversibility are interrelated. When a party fails to object to a jury instruction at trial, we only reverse if the instruction is clearly erroneous, meaning, we must be '"'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.'"' State v. McLinn, 307 Kan. 307, 317-18, 409 P.3d 1 (2018)." State v. Boothby, 310 Kan. 619, 448 P.3d 416, 424 (2019).

We apply harmless error rather than clear error when a defendant requests an instruction but does not object when it is not given. See State v. Haygood, 308 Kan. 1387, Syl. ¶ 8, 1404, 430 P.3d 11 (2018); State v. Davis, 306 Kan. 400, 418, 394 P.3d 817 (2017); and State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016). Here, however, Dean's request for a cooperating witness instruction was so nonspecific as to be akin to not making the request at all. In light of this, and given that Dean did not object to the district court's ruling, we review for clear error. See State v. Brammer, 301 Kan. 333, 334, 343 P.3d 75 (2015). Dean's request for his "cooperating witness" instruction at trial was imprecise, but he appeared to reference the PIK instruction on informant testimony. See PIK Crim. 4th 51.100 (2017 Supp.). On appeal, Dean's appellate counsel connects the dots and analogizes the "cooperating witness" instruction he requested with PIK Crim. 4th 51.100 (2017 Supp.), which states: "You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence." Dean argues that the same instruction, if modified for a cooperating witness, would have been legally appropriate here.

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State v. Dean

Dean concedes that Steele—to whom the instruction was tar- geted—was not an "informant" under PIK Crim. 4th 51.100 because he was not investigating for the State when he observed Gary's murder. See State v. Ashley, 306 Kan. 642, 647-48, 396 P.3d 92 (2017) (listing "line of cases" where "this court has consistently held that the informant cautionary instruction is not required when . . . the witness had not been contacted by the State and was not intentionally given the role of investigator"). But still, Dean argues, a witness who cooperates with the State in exchange for a benefit has the same motive for biased or dishonest testimony. Dean relies on a case from Oklahoma to argue that a cautionary instruction is required when a witness—who is not an "informant" under PIK Crim. 4th 51.100—testifies for the State in exchange for a benefit. In Dodd v. State, 993 P.2d 778 (Okla. Crim. App. 2000), the Court of Criminal Appeals of Oklahoma explained that the distinction between an informant who works for the State and one who does not "matters little in terms of . . . reliability or trustworthiness" because both often "relay incriminating statements to the state in expectation of benefit in exchange." 993 P.2d at 783-84. The Oklahoma court held that a cautionary jury instruction must be given when jailhouse informant testimony is admitted, even if the informant was not working for the State when procuring the incriminating statements. 993 P.2d at 784. We have held that instructing a jury to view with caution the testimony of a witness for benefits is permissible but not legally required. In State v. Saenz, 271 Kan. 339, 346, 22 P.3d 151 (2001), a defendant likewise urged us to follow Dodd and adopt a cautionary instruction for all jailhouse informants, but we declined to do so. Instead, we affirmed the use of PIK Crim. 3d 52.18-A (2008 Supp.) (now PIK Crim. 4th 51.100) for an informant who acts as a State agent when obtaining the evidence against the defendant. 271 Kan. at 348. On the flipside, we have also held that a district court did not err when it gave an instruction like Dean requests today: "'You should consider with caution the testimony of a witness who, in exchange for benefits from the State, testifies in behalf of the State, if that testimony is not supported by other evidence.'" State v. Allison, 259 Kan. 25, 29, 910 P.2d 817 (1996).

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State v. Dean

Today we affirm this caselaw. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is, nonetheless, testifying in exchange for benefits from the State. At trial, Steele admitted that he was testifying in hopes of getting a reduced sentence in his federal case; defense counsel cross-examined Steele on this point; and defense counsel hammered Steele's bias in closing argument. Thus, the jury was well aware of Steele's benefit and well-equipped to weigh his credibility without a specific cautionary instruction.

The district court did not err when it denied Dean's motion for new trial.

Dean argues the district court should have granted his motion for new trial because the State revealed new material evidence about the details of Steele's federal plea deal after trial. But it is important that the new documents allegedly describing the plea deal are not included in the record on appeal. The State responds that the evidence was not new or material, because Steele admitted that he had a plea deal and was testifying in exchange for a benefit. K.S.A. 2018 Supp. 22-3501(1) provides that "on motion of a defendant" a district court "may grant a new trial to the defendant if required in the interest of justice." To grant a motion for new trial based on newly discovered evidence, a district court must determine that (1) "the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial," and (2) "the evidence is of such materiality that it would be likely to produce a different result upon retrial." State v. Rojas-Marceleno, 295 Kan. 525, 540, 285 P.3d 361 (2012). "While we review a district court's decision on a motion for new trial for an abuse of discretion, we review materiality decisions de novo, giving deference to the district court's findings of fact." 295 Kan. at 539. Dean bears the burden of proving the district court abused its discretion. See 295 Kan. at 539- 40. At trial, Steele testified that he hoped to receive a lesser sentence in his federal case in exchange for testifying for the State in Dean's case. On direct examination, the prosecutor questioned Steele about his expected benefit:

VOL. 310 SUPREME COURT OF KANSAS 857

State v. Dean

"[Prosecutor:] Have you entered a plea in that [federal] case yet?

"[Steele:] Yes.

"[Prosecutor:] And have you been given a plea bargain in exchange for testifying in this case?

"[Steele:] No.

"[Prosecutor:] Are you hoping that your attorney and yourself are able to use this testimony as a basis for reduction in sentence at the time of your sentencing?

"[Steele:] We hope that, yes.

"[Prosecutor:] Is it a guarantee that it's going to happen?

"[Steele:] No.

"[Prosecutor:] Do you anticipate, regardless of whether or not you get a reduction or not, that you are going to be going to prison?

"[Steele:] Yes.

"[Prosecutor:] How long?

"[Steele:] Anywhere from 8 to 10 years, somewhere."

Thus Steele testified that he took a plea bargain in the federal case, but not in exchange for his testimony in Dean's case. Instead, Steele was hoping to leverage his trial testimony for a lesser sentence in the federal case. On the eve of sentencing, the defense filed a motion for new trial based on newly discovered evidence, claiming the State had withheld details about Steele's plea deal with the federal government until after trial. The motion briefly stated that Dean had received "additional discovery regarding the plea deal offered to key prosecution witness Charles Steele," but no documentation was attached. The district court addressed the motion for new trial at the sentencing hearing. There, defense counsel entered an exhibit into evidence that contained documents the State sent him after trial, which purported to shed light on Steele's federal plea deal. The district court admitted this exhibit, but it is not included in the record on appeal. Thus, we do not know what the documents said about Steele's plea deal.

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State v. Dean

However, undisputed statements of counsel on the record suggest that, at a minimum, Steele testified in Dean's case in exchange for a "5K1" motion from the federal government, which would recommend a reduction in his sentence. A "5K1" motion refers to a motion filed under § 5K1.1 of the Federal Sentencing Guide- lines, which states: "Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Granting a departure based on a 5K1 motion is discretionary. See United States v. Munoz, 946 F.2d 729, 730 (10th Cir. 1991) ("This language [in U.S.S.G. 5K1.1] clearly states that the district court's decision to depart is discretionary . . . . [T]he ultimate decision of whether to depart rests in the sound discretion of the district court."). After reviewing the documents and hearing the arguments of counsel, the district court made findings that are not disputed on appeal. The district court found that it was unclear whether Steele had a plea bargain with the federal government, but, regardless, Steele admitted that he was testifying in exchange for a benefit. The district court explained:

"I have looked at my notes on Mr. Steele's testimony. I have considered part of the transcript even on that. My understanding is he pled to that bank robbery. Whether there is a plea bargain or not, I'm not sure there—I don't know that there was. I'm not sure what his mindset was. I'm not sure that he . . . understood that there was a formal plea agreement. There may have been; there may not have been. But what I do believe—and that was based upon direct and cross-examination, but right out of the box, I think it was [the State] who was examining him, did ask, have you been given a plea bargain in exchange for testifying. His answer was no. But I think what is significant is the next question is, are you hoping that your attorney and yourself are able to use testimony as a basis for reduction in the sentence at the time of sentencing, and the answer was, we hope that, yes."

Then the district court explained that the core issue was Steele's credibility and whether he was testifying in hopes of receiving a reduced sentence. The court emphasized that "[t]he essence of what needed to be known was that there was the hope for a reduction based upon cooperative testimony, and that was known and fully known," and Steele was fully impeached on that issue. Thus, the district court ruled that the evidence presented

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State v. Dean failed both prongs of the test—it was not newly discovered or material. We agree with the district court. Dean has the burden to establish that the documents describing Steele's plea deal are new, but he failed to include them in the record on appeal. See Rojas- Marceleno, 295 Kan. at 539-40. Thus we do not know what the alleged "new" evidence was. Moreover, the district court's undisputed findings show that (1) it was unclear whether Steele had a federal plea deal but (2) Steele testified that he hoped to receive a reduced sentence in exchange for his testimony in Dean's case. Based on these findings, we hold that evidence about Steele's plea deal was not new or material. Defense counsel cross-examined Steele about the benefit he could receive for testifying and attacked his credibility during closing argument. We agree with the district court that the essence of Steele's bias—that he was testifying for a benefit—was presented and argued at trial, and more detail about Steele's plea deal would not "be likely to produce a different result upon retrial." 295 Kan. at 540. Accordingly, we hold the district court did not abuse its discretion when it denied Dean's motion for mistrial.

The State presented sufficient evidence of premeditation.

Dean argues the State presented insufficient evidence of premeditation. He does not challenge the sufficiency of the other elements of first-degree premeditated murder. He claims that, at most, the State proved that Dean approached Gary, Gary took a fighting position, and then shots were fired. The State claims there was ample evidence of premeditation—Dean changed into a red shirt, ambushed Gary, and shot him at close range to avenge Rambo. When the sufficiency of the evidence is challenged, we review all the evidence in the light most favorable to the State and determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do not reweigh evidence, resolve evidentiary conflicts, or determine witness credibility. State v. Parker, 309 Kan. 1, 14, 430 P.3d 975 (2018). We also "make[] no distinction between circumstantial and direct evidence in terms of probative value because '"[a] conviction of even

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State v. Dean the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom."'" State v. Robinson, 306 Kan. 1012, 1023, 399 P.3d 194 (2017) (quoting State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 [2014]). In- deed, "direct evidence of premeditation is rare," and "the element of premeditation generally must be proven with circumstantial evidence." State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Recently in State v. McLinn, 307 Kan. 307, 409 P.3d 1 (2018), we clarified that premeditation has a significant "temporal" component. 307 Kan. at 321. We explained, "Premeditation 'means to have thought the matter over beforehand,' meaning 'to have formed the design or intent to kill before the act.' In other words, our premeditation inquiry asks when the intent to kill was formed." 307 Kan. at 321. Put simply, "premeditation involves forming the intent beforehand." 307 Kan. at 322. Traditionally, we have considered five nonexclusive factors to determine whether the State has proved premeditation: "'(1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and dec- larations of the defendant before and during the occurrence, and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.'" State v. Lowery, 308 Kan. 1183, 1238, 427 P.3d 865 (2018) (quoting State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 [2013]). We have continued to rely on these factors since McLinn. See Lowery, 308 Kan. at 1238. The number of factors present in a given case is not determinative "because in some cases one factor alone may be compelling evidence of premeditation." 308 Kan. at 1238. But use of a deadly weapon is, by itself, insufficient to establish premeditation. 308 Kan. at 1238. Considering these factors, along with reasonable inferences drawn from the evidence, we conclude the State presented sufficient evidence of premeditation. The most compelling factors here are lack of provocation and the defendant's conduct before the killing. This was not an instantaneous killing—it was a well-planned ambush. The evidence, when viewed in the light most favorable to the State, shows that Dean formed the intent to kill Gary beforehand: Thomas called Dean from the party; Dean arrived in a plaid shirt but changed into a red one before entering the crowd;

VOL. 310 SUPREME COURT OF KANSAS 861

State v. Dean

Gary was not holding a gun; Dean and Landrum approached Gary; then they shot him at close range. The State also presented evidence that Dean's gang, the Crips, was planning to retaliate against Gary for Rambo's injury. Based on this evidence, a rational fact- finder could conclude beyond a reasonable doubt that Dean premeditated Gary's murder.

The evidence of Dean's gang affiliation was admissible.

Before trial, defense counsel moved to exclude gang affiliation evidence. The district court denied the motion, stating:

"The bottom line and in the final analysis this crime as alleged by the State is about gang identity, activity, affiliation, membership and motivation. It is relevant and it is material. The probative value of this evidence outweighs any resulting prejudice. Under K.S.A. 60-445 there is no unfair or harmful surprise to the defense. This case in its essence is about gang membership and affiliation."

During trial, defense counsel objected to several references to gang affiliation, and the district court overruled the objections based on its pretrial ruling. Defense counsel also requested and was granted a continuing objection during one detective's testimony. At the end of trial, the district court gave the jury this limiting instruction:

"There has been evidence offered tending to prove gang membership and affiliation. This evidence may be used to show motive, part of the events surrounding the commission of the crime, the relationship of the parties, identification, and witness bias. This evidence shall not be considered for any other purpose."

On appeal, Dean argues that evidence of gang affiliation should have been excluded from trial because it was irrelevant and unduly prejudicial. He claims this evidence was not relevant to show bias or motive, and the State's gang revenge theory was speculative at best. The State counters that gang affiliation evidence was relevant to show Dean's motive to kill Gary and to explain the events surrounding the crime, and any prejudice was mitigated by the district court's limiting instruction. Generally, gang affiliation evidence is admissible if it is relevant, meaning material and probative, and not unduly prejudicial. State v. Peppers, 294 Kan. 377, 388, 276 P.3d 148 (2012). We have summarized the

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State v. Dean steps to review the admission of gang affiliation evidence this way:

"Gang affiliation evidence is admissible if relevant. Relevant evidence is defined by statute as evidence that is both material and probative. An appellate court reviews whether evidence is material under a de novo standard. Materiality addresses whether a fact has a legitimate and effective bearing on the decision of the case and is in dispute. An appellate court reviews whether evidence is probative under an abuse of discretion standard. Evidence is probative if it has any tendency to prove any material fact. Even if gang evidence or other evidence is deemed relevant, it may be excluded if it is more prejudicial than probative." 294 Kan. 377, Syl. ¶ 1.

See K.S.A. 60-401(b) ("'Relevant evidence' means evidence having any tendency in reason to prove any material fact."). "A district judge's balancing of probative value and prejudice is reviewed for an abuse of discretion." 294 Kan. at 391. The prejudicial effect of gang affiliation evidence may be cured by a limiting instruction, though a district court need not give one sua sponte. 294 Kan. at 391. We have held that gang affiliation evidence may be relevant to show bias, prove identity, or explain an otherwise inexplicable act, but these reasons are not exclusive. See State v. Jones, 295 Kan. 804, 810, 286 P.3d 562 (2012) (listing cases). For example, in Peppers, the defendant, who was chief of the Traveling Vice Lords (TVL) gang, killed a bystander when he tried to shoot a member of an associated gang, the "Solids 4," in retaliation for killing a TVL member. On appeal, we held that evidence of gang affiliation was relevant "[b]ecause Peppers defended only by holding the State to its high burden of proof beyond a reasonable doubt," and thus his identity, opportunity, and motive were in dispute. 294 Kan. at 390. We also held the evidence was probative because "[g]ang affiliation, hierarchy, and rules" explained the events that led to the bystander's death and the defendant's motive for the retaliatory shooting. 294 Kan. at 390. Finally, we held the admission of gang affiliation evidence was not unduly prejudicial because the district court

"instructed the jury not to consider the gang affiliation evidence to prove 'that [Peppers] is a person of bad character or that [Peppers] has a disposition to commit crimes' and instead to consider the evidence 'only for the purpose of determining if it tends to show part of the events surrounding the commission of the

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State v. Dean crime or the motive of the person who committed the crimes, if any, of which the defendant is accused.'" 294 Kan. at 391-92.

In Peppers we held the gang affiliation evidence was relevant because "the shootings were gang-related," and the defendant's identity, opportunity, and motive were in dispute. 294 Kan. at 391. And the evidence was not unduly prejudicial because "the prejudicial effect of the gang evidence was limited by the district judge's jury instruction" and "the probative value side of the balance on the gang affiliation evidence had substantial weight." 294 Kan. at 391-92. Following Peppers, we hold the gang affiliation evidence presented here was relevant and not unduly prejudicial. Like the defendant in Peppers, Dean's defense was to hold the State to its burden of proof; he did not claim self-defense. Thus gang affiliation evidence was relevant because it had a tendency to prove disputed facts, including the shooter's identity, the motive for killing Gary, and whether the shooting was premeditated. Indeed, many events that surrounded Gary's death would be inexplicable without evidence of gang affiliation—like the gang feud that escalated after Rambo was shot, or the significance of Dean's red clothes. Put simply, this was a retaliatory gang shooting, not a random act of violence. Furthermore, the district court mitigated any undue prejudice to Dean by instructing the jury that evidence of "gang membership and affiliation . . . may be used to show motive, part of the events surrounding the commission of the crime, the relationship of the parties, identification, and witness bias" and "shall not be considered for any other purpose." As a result, we hold the district court did not err when it admitted evidence of gang affiliation. Finally, Dean argues cumulative error warrants reversal. But because there are no errors to accumulate here, Dean's cumulative error claim fails. See State v. Williams, 299 Kan. 1039, 1051, 329 P.3d 420 (2014).

Affirmed.

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State v. Dean

JOHNSON, J., not participating.1

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 116,568. Justice Johnson retired effective September 6, 2019.

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State v. Owens

No. 115,441

STATE OF KANSAS, Appellee, v. KEN'DUM DAN'SHA OWENS, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Defendant's Right to Speedy Trial—Four Factors for Court to Consider if Violation Asserted. When a criminal defendant asserts a violation of his or her right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Con- stitution Bill of Rights, Kansas courts weigh four nonexclusive factors: the length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. The court balances the factors, weighing the conduct of both prosecution and accused. Because the test requires a balancing, none of these factors is a necessary or sufficient condition for finding a violation.

2. CONSTITUTIONAL LAW—Right to Speedy Trial—Applicable to Juve- nile Proceedings. The right to a speedy trial guaranteed under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Con- stitution Bill of Rights applies in juvenile offender proceedings under the Revised Kansas Juvenile Justice Code, K.S.A. 2018 Supp. 38-2301 et seq.

3. SAME—Speedy Trial Analysis—Length of Delay Is Triggering Factor. The length-of-delay factor is a triggering mechanism in a speedy trial analysis. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry into the other factors applied in a speedy trial analysis.

4. CRIMINAL LAW—Speedy Trial Analysis—Length-of-Delay Factor—Com- plexity Factor. Even if a defendant pushes for delay in order to gain some advantage, the delay itself can be excessive and presumptively prejudicial. Complexity is generally the determinative factor separating a delay that is presumptively prejudicial from one that is not.

5. SAME—Speedy Trial Analysis—No Violation under These Facts. Under the facts of this case, the defendant failed to establish a violation of the constitutional right to a speedy trial.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 15, 2017. Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed November 1, 2019. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

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State v. Owens

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Ken'Dum Dan'Sha Owens appeals a district court order rejecting his argument that a 19-month delay between his arrest and trial violated his constitutional right to a speedy trial as guaranteed by the Sixth Amendment to the United States Con- stitution and § 10 of the Kansas Constitution Bill of Rights. In part, Owens argues a Court of Appeals panel erred in holding that the six months Owens spent in juvenile detention should not be counted in determining the length of the delay. See State v. Owens, No. 115,441, 2017 WL 4082317, at *4 (Kan. App. 2017) (unpublished opinion). He also argues the panel erred in weighing the factors used by courts when analyzing a constitutional speedy trial claim. We agree Owens' six-month period of juvenile detention should be included in a calculation of how long it took to get to trial. But Owens has not established a violation of his constitutional right to a speedy trial, even considering the full 19-month delay rather than the 13 months considered by the panel. We affirm the district court and the Court of Appeals. See Owens, 2017 WL 4082317, at *1

FACTS AND PROCEDURAL BACKGROUND

In the late evening hours of February 16, 2012, two men approached Nathan Davis after he exited his vehicle in the parking lot of his apartment complex. One of the men—later identified as Owens—pointed a gun at Davis and demanded his car keys. Davis handed over his keys, and the two men got into Davis' vehicle and drove away. Davis immediately called 911 and told a dispatcher his car had been stolen at gunpoint. He described the man holding the gun as a black male, 20 to 22 years old, about 6 feet tall with a stocky build, and wearing a black hooded sweatshirt, red or black ball cap, and blue jeans. A nearby law enforcement officer, Brent Johnson, heard the information relayed by dispatch and saw a vehicle matching the description of Davis' car stopped in the middle of the street a few

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State v. Owens blocks from Davis' apartment. Officer Johnson activated his patrol car's sirens and emergency lights. The man seated in the driver's seat of Davis' vehicle exited and ran away. Officer Johnson chased the man on foot through the surrounding residential area but lost sight of him a few minutes into the pursuit. Officer Johnson described the suspect as a black male wearing blue jeans, white tennis shoes, a red baseball cap, and a black jacket. Officer Johnson maintained a perimeter around the area where he believed the suspect was likely hiding while waiting for backup officers to arrive. A K-9 officer soon arrived and began searching the area with his police dog. The officers found a black male— later identified as Owens—wearing a black hooded sweatshirt, white tennis shoes, and brightly colored pajama pants hiding behind a tree in the back yard of a nearby residence. The officers arrested Owens and discovered a red and black baseball cap in the same yard. The officers also located a silver handgun in the yard of another nearby residence. But they did not find any blue jeans. The officers brought Davis to the location where they held Owens. Davis identified Owens as the man who pointed the gun at him and stole his car. Officers found a cell phone in Davis' car, and they later identified it as belonging to Owens. The State originally alleged Owens committed juvenile offenses; he was 17 at the time. After about six months, the State dismissed the juvenile case and filed a criminal information, charging Owens with aggravated robbery, criminal use of a weapon, and criminal deprivation of property. After the defense made 10 requests for continuance, Owens filed a pro se motion for new counsel. In part, he complained his attorney had been seeking continuances without his consent and without ensuring that Owens was present at continuance hearings. But Owens withdrew his request for new counsel when told his case would be given a "hard jury trial setting." The trial began just more than 19 months after Owens' arrest. At trial, Officer Johnson identified Owens as the man he chased and officers later arrested. Officer Johnson testified Owens was wearing blue jeans when he began chasing him but was wearing brightly colored pajama pants when he was apprehended. A post-arrest photo of Owens was admitted into evidence showing

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State v. Owens the pajama pants and other clothing he was wearing at the time of his arrest. Davis identified the man in the photograph as the person who stole his car at gunpoint but noted the difference in pants. Davis also identified the gun the officers discovered as the one Owens had used. Owens took the stand and claimed his phone had been stolen while he was playing basketball near where he was arrested. He denied being involved in the aggravated robbery of Davis. The jury convicted Owens as charged. He appealed his convictions and sentence, raising five issues. The Court of Appeals affirmed, finding no reversible error. See Owens, 2017 WL 4082317, at *1. Owens timely petitioned for our review. We granted review only as to Owens' claim that the delay between his arrest and trial violated his constitutional right to a speedy trial. The State filed a conditional cross-petition for review, arguing in part that the panel erred in one aspect of its speedy trial analysis—specifically, in finding the length of the delay presumptively prejudicial. We granted only that portion of the State's request for review. This court's jurisdiction is proper. See K.S.A. 20-3018(b) (petition for review of Court of Appeals decision); see also Supreme Court Rule 8.03(b) and (c) (2019 Kan. S. Ct. R. 53) (petition for review and cross-petition for review from Court of Appeals opinion).

CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

Standard of Review

The factual findings underpinning a district court's decision regarding a defendant's constitutional speedy trial right are reviewed for substantial competent evidence, but the ultimate legal conclusion drawn from those facts is reviewed de novo. In re Care & Treat- ment of Ellison, 305 Kan. 519, 533-34, 385 P.3d 15 (2016).

Analysis

Owens argues his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights was violated because his

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State v. Owens jury trial did not occur until more than 19 months after his arrest. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." This provision applies in state court through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina, 386 U.S. 213, 222- 23, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Owens also cites § 10 of the Kansas Constitution Bill of Rights, which guarantees the right of an accused "[i]n all prosecutions" to "a speedy public trial by an impartial jury." The United States Supreme Court has identified four nonexclusive factors to be analyzed when a criminal defendant makes a Sixth Amendment speedy trial claim. Those factors, set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), are: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." This court applied these factors in State v. Otero, 210 Kan. 530, 532-36, 502 P.2d 763 (1972). In doing so, the Otero court noted that "the approach to the problem is a balancing test in which the conduct of both prosecution and accused is to be weighed. This approach suggests an ad hoc basis in which various factors are to be taken into account." 210 Kan. at 532. Because the test requires a balancing, none of these factors is a necessary or sufficient condition for finding a violation. Instead, we consider them together along with any other relevant circumstances. See United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Cur- rency, 461 U.S. 555, 564-65, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983); State v. Fink, 217 Kan. 671, 673, 538 P.2d 1390 (1975). We will examine each of the four Barker factors in turn.

1. Length of the delay

As to the first factor—length of the delay—the Court of Ap- peals panel held (1) Owens' constitutional right to a speedy trial attached upon the filing of adult criminal charges and (2) the 13- month delay from that point until Owens' trial was presumptively prejudicial. Owens, 2017 WL 4082317, at *4. Owens agrees the delay was presumptively prejudicial, but he argues the delay was 19, not 13, months. He contends his right to a speedy trial attached

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State v. Owens when he was arrested and thus before adult criminal charges were brought. In briefing, the State argued the delay was only 13 months. It softened its view at oral argument in light of State v. Robinson, 56 Kan. App. 2d 567, 434 P.3d 232 (2018). Robinson, filed after the parties had submitted their brief to this court, held a juvenile offender has the same constitutional right to a speedy trial as an adult criminal defendant. 56 Kan. App. 2d at 571. The State also argued that, regardless of whether the delay is 13 or 19 months, the panel went astray in concluding either length of time is presumptively prejudicial. The State further contends the delay here was not presumptively prejudicial because the delay was mainly caused by Owens. And, it argues, this point alone requires us to reject Ow- ens' speedy trial claim. We first address when Owens' speedy trial right attached. The Court of Appeals, in deciding not to include the six-month period during which Owens was held in juvenile detention, stated that there "seems to be no Kansas caselaw exactly on point." Owens, 2017 WL 4082317, at *4. The panel then cited an Arizona decision, State v. Myers, 116 Ariz. 453, 569 P.2d 1351 (1977). In My- ers, as here, the defendant first faced charges as a juvenile offender and then later as an adult. The Arizona court held the speedy trial right did not attach until the adult criminal prosecution began. 116 Ariz. at 454-55. Myers dovetails with the decision of this court in State v. Breedlove, 295 Kan. 481, 487, 286 P.3d 1123 (2012), which is not cited by the panel or the parties. In Breedlove, this court held: "A juvenile has neither a constitutional nor a statutory right to a right to a speedy trial in matters conducted under the Juvenile Justice Code." 295 Kan. at 487. Owens, however, argues that this court's decision in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), suggests juvenile offenders have a constitutional speedy trial right. For support of this position, he filed a letter of additional authority under Supreme Court Rule 6.09(b) (2019 Kan. S. Ct. R. 39) and cited Robinson, 56 Kan. App. 2d at 571, for its holding that the constitutional right extended to juveniles. The Robinson panel mainly relied on In re L.M., 286 Kan. 460, in which this court considered whether the Sixth Amendment

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State v. Owens and § 10 granted Kansas juvenile offenders the right to a jury trial. In re L.M. recognized that Findlay v. State, 235 Kan. 462, 463-64, 681 P.2d 20 (1984), held juveniles charged under the Kansas Ju- venile Justice Code (KJJC) have no constitutional right to a trial by jury. But almost 20 years after Findlay, the Kansas Legislature repealed the KJJC and replaced it with the Revised Kansas Juve- nile Justice Code. See K.S.A. 2018 Supp. 38-2301 et seq. The In re L.M. court noted the significant differences between the KJJC and the revised code and concluded: "Changes to the Kansas Juvenile Justice Code since 1984 have eroded the benev- olent, child-cognizant, rehabilitative, and parens patriae character that distinguished it from the adult criminal system." 286 Kan. 460, Syl. ¶ 1. Provisions in the revised code make juvenile offender proceedings "more akin to an adult criminal prosecution." 286 Kan. 460, Syl. ¶ 1. This change led the court to abrogate Findlay and to hold "that juveniles henceforth have a constitutional right to a jury trial under the Sixth and Fourteenth Amend- ments." 286 Kan. 460, Syl. ¶ 1. Addressing § 10 of the Kansas Constitution Bill of Rights, In re L.M. held: "The proceedings under the KJJC fit within the meaning of the phrase 'all prosecutions' as set forth in § 10 of the Kansas Constitution Bill of Rights, and juveniles have a right to a jury trial under the Kansas Consti- tution." 286 Kan. 460, Syl. ¶ 2. The Robinson court held the same reasoning applied to the right to a speedy trial guaranteed by the Sixth Amendment and § 10. 56 Kan. App. 2d at 571. Robinson reasoned that this court's comments in Breedlove addressing the Kansas Ju- venile Justice Code should not be read to apply to matters conducted under the Revised Kansas Juvenile Justice Code; instead, the analysis in In re L.M. applied. 56 Kan. App. 2d at 571. While the State initially took a position contrary to the Robin- son holding, at oral argument before us, it recognized the Robin- son holding and dropped its opposition to the application of a constitutional speedy trial right in juvenile offender proceedings. Thus, it offers no reason to reject the Robinson panel's reasoning or to distinguish In re L.M.'s analysis of the effect of the Revised Kansas Juvenile Justice Code on the constitutional right to a jury trial from an analysis of the revised code's impact on the constitu-

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State v. Owens tional right to a speedy trial. Nor do we discern any reason to distinguish the application of the two rights granted by the Sixth Amendment and § 10. We, therefore, hold the right to a speedy trial guaranteed under the Sixth Amendment and § 10 applies in juvenile offender proceedings under the Revised Kansas Juvenile Justice Code. See Robinson, 56 Kan. App. 2d at 571. As a result, because the charges against Owens remained the same throughout both the juvenile offender and adult criminal proceedings, his right to a speedy trial attached on his arrest. See State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004) (holding speedy trial right attaches when prosecution begins by arrest). This means the delay in bringing Owens to trial was more than 19 months. Recognizing the possibility that the entire 19-month period should be considered, the Court of Appeals concluded the delay was presumptively prejudicial no matter if the delay was 19 months or 13 months. See Owens, 2017 WL 4082317, at *4. The State disagreed with this conclusion in its cross-petition for review. The significance of such a potential error arises because the United States Supreme Court has explained the delay factor is "to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. And generally a delay of more than 19 months is more likely to be prejudicial than a delay of 13 months. Even so, this court has held that delays of 13 and 23 months in starting trials for murder were not presumptively prejudicial. See State v. Hayden, 281 Kan. 112, 128, 130 P.3d 24 (2006) (13- month delay); State v. Mathenia, 262 Kan. 890, 895, 942 P.2d 624 (1997) (23-month delay). But we have rejected the "inflexible" approach of determining presumptive prejudice based on predes- ignated permissible lengths of time. See State v. Weaver, 276 Kan. 504, 510, 78 P.3d 397 (2003); see also Hayden, 281 Kan. at 128 ("We have resisted using our previous cases to set a specific time limit."). Instead, the "inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the

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State v. Owens delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 530-31. Here, unlike the complex murder proceedings that led to the 13- and 23-month delays at issue in Hayden and Mathenia, Owens was charged with classic "street crimes" of aggravated robbery, criminal use of a weapon, and criminal deprivation of property. And there were few witnesses and no complex forensic or other evidence. The difference in complexity makes this case more like Weaver. There, this court determined a 14-month delay was presumptively prejudicial. The court reasoned that the "crime was one count of possession of cocaine with intent to sell. The State's case against him was simple and straightforward—police found on Weaver crack cocaine packaged in individual units and $265 cash, including 12 $20 bills." Weaver, 276 Kan. at 510-11. The State argues that more than the fact that street crimes were charged should be considered before determining whether the delay was presumptively prejudicial. Specifically, in its cross-petition, the State argues Owens' "actions in requesting or acquiescing in continuances weigh against a conclusion that a delay is presumptively prejudicial." This circumstance—the reason for the delay—is Barker's second factor. While Barker indicates that the second factor is "closely related" to the first factor, it does not support conflating the two. 407 U.S. at 530-31. The State in this case largely blurs the distinction between the first and second Barker factors, suggesting this court did so in State v. Davis, 277 Kan. 309, 85 P.3d 1164 (2004), State v. Bloom, 273 Kan. 291, 44 P.3d 305 (2002), and State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998). Indeed, in Bloom and Smallwood this court considered the factors as a whole rather than separately considering whether the delay was presumptively prejudicial. Bloom, 273 Kan. at 310-11; Smallwood, 264 Kan. at 75-76. But this approach deviates from the United States Supreme Court's approach of considering the delay as a triggering factor. See Barker, 407 U.S. at 530-31. And this court has also held that unless the delay is presumptively prejudicial the other factors need not be considered. E.g., State v. Mann, 274 Kan. 670, 701, 56 P.3d 212 (2002). The third case cited by

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State v. Owens the State, Davis, 277 Kan. at 334-35, recognized this language from Mann. Yet, as Owens argues, the Davis court mentioned the defense's request for continuances in determining that a delay was not presumptively prejudicial. The Davis court, to that extent, conflated the first and second factors. But the court mainly noted much of the delay was caused by competency proceedings that led to the commitment and treatment of the defendant. These complications fall within the classic boundaries established in Barker about the complexity of the case. See Barker, 407 U.S. at 530-31. But, under Barker, the defendant's requests for continuances should have fac- tored in only after a determination of presumptive prejudice. See 407 U.S. at 534-36. Barker's analysis conveys that even if a defendant pushes for delay in order to gain some advantage, the delay itself can be excessive and presumptively prejudicial. See 407 U.S. at 534-36. The United States Supreme Court gave only one example of a factor weighing on presumptive prejudice, and that example involved complexity. 407 U.S. at 531. Likewise, this court has cited complexity as the determinative factor separating a delay that is presumptively prejudicial from one that is not. Compare Mathenia, 262 Kan. at 894-95 (23-month delay between arrest and trial was not prejudicial in case in which multiple inmates attacked prison guards; at least 30 inmates were considered viable suspects in the attacks; and indictments were returned against 12 inmates), with Weaver, 276 Kan. at 511 (14-month delay presumptively prejudicial in a simple and straightforward case). Owens' counsel requested 10 continuances. After about eight of these, Owens filed a pro se motion for appointment of new counsel arguing his appointed counsel had requested monthly continuances from October 2012 to May 2013 without his consent or his appearance in court when the continuances were requested. At the hearing on that motion, Owens' counsel explained that Owens faced charges in this case as well as a second case. She then explained that this case had been delayed because of her trial schedule and because "Mr. Owens had asked me to talk to [the prosecutor] about working out a plea to have the cases consolidated. That is something that I have been speaking to [the prosecutor] about."

VOL. 310 SUPREME COURT OF KANSAS 875

State v. Owens

Thus, as the State suggests, the delay may have at least partially been because Owens felt there might be an advantage to seeking consolidation of his cases and a plea agreement. Even so, Barker instructs that the length of the delay may be presumptively prejudicial. Barker, 407 U.S. at 530-31. So was the 19-month delay presumptively prejudicial? Again, under Barker, the overarching consideration in determining whether the delay is presumptively prejudicial is whether the delay is reasonable given the complexity of the case. See Barker, 407 U.S. at 530-31. Here, Owens was charged with "ordinary street crime[s]." 407 U.S. at 531. Thus, referring to Barker's example, "the delay that can be tolerated . . . is considerably less than for a serious, complex conspiracy charge." 407 U.S. at 531. The State's case largely hinged on Davis' and Officer Johnson's identification of Owens and the physical evidence recovered—Owens' hat and phone and the gun. This was a simple and straightforward case, and the nature of the evidence involved does not justify a 19- month delay between Owens' arrest and trial. Perhaps, the State's arguments could be construed to suggest that this case was complex because Owens was charged in a second case and he sought a plea agreement resolving both cases. But the record does not allow us to determine whether the second case complicated the plea negotiations. Having two cases does not necessarily make plea negotiations more complex or justify a delay. They might. But we simply lack the record to make the determination because the district court's findings do not address that possibility. We thus agree with the Court of Appeals that the 19-month delay was presumptively prejudicial under the circumstances of this case.

2. Reasons for the delay

The Court of Appeals found the reasons for the delay weighed against Owens. See Owens, 2017 WL 4082317, at *4-7. Barker explained the relevant considerations for this factor:

"A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless

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State v. Owens should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." 407 U.S. at 531.

The Court of Appeals panel noted these considerations and also cited federal courts holding that "'[w]here the defendant's actions "were the primary cause of the delay," the second factor "weighs heavily against him."' United States v. Larson, 627 F.3d 1198, 1208 (10th Cir. 2010) (quoting United States v. Toombs, 574 F.3d 1262, 1274 [10th Cir. 2009])." 2017 WL 4082317, at *5. The panel noted that Owens' counsel requested 10 continuances, which the court granted, but the State made no requests for a continuance. 2017 WL 4082317, at *5. The State argues these continuances weigh heavily against Owens' speedy trial claim. Owens disagrees, arguing he did not consent to the continuances and could not object to the continuance because he was not present when his counsel made the requests. Citing State v. Brownlee, 302 Kan. 491, 508, 354 P.3d 525 (2015), Owens noted he had a right, under K.S.A. 2012 Supp. 22- 3208(7), to be present during a motion hearing on a continuance. He then argued the failure to assure his presence was error and the continuances should not be counted against him. He then implies the delays should be the responsibility of the State because, "[w]hile not a deliberate attempt to delay, it is a negligent delay where the government failed to adequately protect Mr. Owens' speedy trial rights by assuring his presence and consent." The panel agreed with the State's contentions and concluded that Owens provided no authorities supporting his assertion the State had been negligent. See 2017 WL 4082317, at *5. As to the negligence claim, the panel concluded:

"Owens' contention that the delay resulted from the State's negligence does not automatically succeed. To begin with, it is unclear how the State would have committed negligence by failing to ensure Owens' presence at the continuance hearings, and outside of making this bald assertion, Owens has provided no additional authority or argument on appeal. It is a well-known rule of this court that failing to support an argument with pertinent authority or explaining why an argument is sound, despite a lack of pertinent authority, is akin to failing to adequately brief an issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015)." Owens, 2017 WL 4082317, at *5.

VOL. 310 SUPREME COURT OF KANSAS 877

State v. Owens

Thus, the panel held Owens had not properly briefed the issue. See Owens, 2017 WL 4082317, at *5-6. Owens does not dispute this conclusion on review. And arguments abandoned before the Court of Appeals generally cannot be raised for the first time in a petition for review. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 161, 298 P.3d 1120 (2013). We, thus, decline to charge any of the delay to the State based on a theory it was negligent. As to Owens' right to be present, before the Court of Appeals panel, he relied only on a statutory right under K.S.A. 2012 Supp. 22-3208(7) by citing the statute and Brownlee, 302 Kan. 491. Brownlee specifically noted it was not deciding whether a defendant had a constitutional right to be present at a continuance hearing. 302 Kan. at 508. The panel noted this limitation in Brownlee and that Owens had not cited authority for a constitutional right to be present at the continuance hearings. In reaching that conclusion, the panel referred to one basis for the constitutional right to be present—an accused's right to be present at all critical stage of the proceeding—and noted that Owens had not made this argument. Owens, 2017 WL 4082317, at *5. Owens admits this in his petition for review. Yet Owens asks us to apply recent caselaw recognizing that a continuance hearing may be a critical stage of criminal proceedings. See, e.g., State v. Wright, 305 Kan. 1176, 1178, 390 P.3d 899 (2017). Wright was decided after Owens had filed his brief in the Court of Appeals. This explains why he now cites it but failed to do so in the Court of Appeals. But this timing does not explain why Owens did not argue before the Court of Appeals that he had a constitutional right to be present at the continuance hearings. Again, issues not presented to the Court of Appeals cannot be raised on a petition for review. Snider, 297 Kan. at 161. Focusing on Owens' statutory right, the panel found persuasive the State's arguments that Owens caused the delay. The panel pointed to the transcript of the hearing on Owens' pro se request for new counsel and noted that Owens' counsel told the district court that Owens asked her to see if she could get his cases consolidated and could negotiate a plea arrangement disposing of both

878 SUPREME COURT OF KANSAS VOL. 310

State v. Owens cases. His counsel explained this had required several continuances. The prosecutor confirmed Owens' counsel's statements. Owens did not dispute these representations at the hearing. In fact, his pro se motion had said the same thing. Owens, 2017 WL 4082317, at *6. Based on these circumstances, the panel concluded that despite Owens' later objection to the continuances, at the time of many of the early continuances "he not only acquiesced to the continuances but also wanted the continuances. As a result, Owens' decision to seek a plea agreement with the State contributed to the delay of his trial." Owens, 2017 WL 4082317, at *7. In his petition for review, Owens repeats his arguments about not being present or agreeing to the continuances. But he does not discuss the hearing on his pro se motion. Along with the points made by the panel, we note that at the hearing, the district court asked Owens if he was willing to withdraw his motion to change counsel if the court set the case for a "hard jury trial" setting. Ow- ens responded, "Yes, sir." While Owens did not explicitly waive his speedy trial right, he acquiesced in another continuance to his case. At that time, plea negotiations were still underway. Eventu- ally, Owens declined the plea offer and asserted his right to trial. After trial, Owens reasserted his speedy trial argument in a motion for new trial. The district court denied the motion, noting that under the statutory speedy trial statute, a defendant need not be present if counsel makes the continuance request after consultation with the defendant. K.S.A. 2018 Supp. 22-3402(g). The court found the continuances here complied with the statutory requirement. Implicitly, the findings reveal Owens was aware his counsel was seeking the continuances and agreed to them in the moment, even if several months later he objected. And the arguments of both Owens' counsel and the prosecutor at the hearing support this conclusion. Both counsel reminded the district judge of the procedural history of the plea negotiations in the two cases. Owens' counsel clarified that the initial negotiations "only pertained to [Owens' other case]." The district court judge stated he was aware of those negotiations and that Owens had been a part of a hearing in the other case at which the court had been informed of the negotiations.

VOL. 310 SUPREME COURT OF KANSAS 879

State v. Owens

Counsel then noted that Owens participated in plea negotiations in his other case right up to the point of trial in July 2013. Owens' counsel said the parties "conduct[ed] further plea negotiations in this case" after Owens' trial in the other case but "[t]hose plea negotiations also failed." The State agreed with Owens' counsel's account of the attempted plea negotiations stating they "were in con- stant contact . . . about these two cases trying to work on disposing of these cases [in a way] that was reasonable and beneficial for the defendant and that would . . . be a fair disposition for the State and the victims." After the State and Owens' counsel informed the district court of the procedural background underlying the delay, the district court asked Owens: "[W]hat else would you like to tell me?" He responded: "That's pretty much all I have, Your Honor." The court then rejected Owens' claim. The district court weighed the fact Owens had been in negotiations on both cases, had been in consultation with counsel about the same, and had not been present at all of the continuance hearings. The record supports the conclusion of the district court. It shows Owens was still trying to resolve this case by plea agreement after he withdrew his motion to change counsel, and Owens was aware those negotiations contributed to the delay. While Owens asserted he did not consent to the continuances, he did not rebut the statements that the continuances were because of plea negotiations, which he had requested and was aware of. Based on the statutory speedy trial argument presented to the district court about Owens' right to be present, the Court of Ap- peals correctly determined Owens' counsel's requests for continuances should be weighed against him in considering the reasons for the delay. See Larson, 627 F.3d at 1208.

3. Assertion of the right

The parties agreed Owens asserted his constitutional speedy trial rights by objecting to continuances in his pro se motion for new counsel and his pro se posttrial motion to dismiss. The Court of Appeals found this factor weighed in favor of Owens. See Owens, 2017 WL 4082317, at *7. The parties do not dispute this finding on review. But we note again that while Owens asserted an

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State v. Owens objection through his pro se motion for new counsel, he withdrew the motion and essentially acquiesced in the continuances.

4. Prejudice

Owens argues he was prejudiced by the delay. In analyzing the prejudice factor, Barker identified three interests the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit possible impairment of the defense. 407 U.S. at 532. Owens addressed the first two considerations in his brief to the Court of Appeals. But he did not address either in his petition for review. Rather, Owens only contends the delay was prejudicial to his defense. Owens points out that the victim, Davis, had to rely on Officer Johnson's report to refresh his recollection at trial. Davis' fading memory was explained to the jury by noting the length of time that had passed between the events and the trial. Owens argues "the faded memory covers up the details used to challenge the identification, and leave only the identification remaining. The lengthy delay in going to trial prevented Owens from effectively questioning Davis on his actual recollection of the robbery." In fact, however, Owens cross-examined Davis about the discrepancies between Owens' dress and physical appearance and the description of the suspect Davis gave to Officer Johnson. Davis described the suspect as a black male, around 6 feet tall with a stocky build, appearing to be between the ages of 20 to 21 years old. Officer Johnson asked Owens his height and weight during post-arrest booking. Owens responded he was 6 feet, 2 inches tall and weighed about 195 pounds. The biggest discrepancy in Davis' physical description of the suspect is the age. Owens was only 17 years old at the time of the incident. Davis' description pointed to someone three to five years older. Owens did not press this point in cross-examination; he did not ask Davis what caused him to believe the suspect was in his early twenties as opposed to being somewhat older or younger. One other discrepancy was the fact Davis described the suspect as wearing a dark t-shirt and blue jeans. But Owens was wearing a red t-shirt at the time of his arrest and pajama pants.

VOL. 310 SUPREME COURT OF KANSAS 881

State v. Owens

Davis provided a reasonable explanations for the differing accounts—the fact it was dark out and the encounter was brief. Overall, however, Owens successfully punched holes in Davis' identification and the jury had several points to weigh as credibility considerations. And his lack of memory at the time of trial likely reduced his credibility. Owens has failed to show his defense was impaired as a result of the delay, and he abandoned any arguments about oppressive pretrial incarceration or anxiety and concern of the accused in his petition for review. Thus, Owens has not shown he was prejudiced by the delay.

CONCLUSION

The length of the delay was excessive given the relative sim- plicity of the case, so a presumption of prejudice arose from that delay. This factor weighs in Owens' favor and merits consideration of the other factors that go into the balance. But the presumption of prejudice that arose from that delay is offset by the circumstance of the delay being largely attributable to the fact Owens had multiple cases pending in which he was represented by the same attorney and was seeking a favorable plea agreement in both cases. And although Owens was ultimately unsuccessful, he sought to consolidate the cases as part of a plea agreement. The reasons for the delay weigh against Owens. As to the third factor, Owens complained about the delay, which weighs in his favor. But the evidence supports that Owens wanted his attorney to seek consolidation of his cases and that these efforts resulted in some delay, which diminishes his later attempt to complain about the delay. As to the fourth factor, Owens has not shown he was prejudiced by the delay. As a result, the final factor weighs against Owens. Balancing the four factors together and considering the actions of both the State and Owens, the reasons for the delay and the lack of prejudice counter the presumption of prejudice arising from the 19-month delay. While Owens objected, his objections were partially withdrawn, and overall he has failed to show his constitutional speedy trial rights were violated. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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State v. Owens

PATRICK J. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 115,441 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 310 SUPREME COURT OF KANSAS 883

Via Christi Hospitals Wichita v. Kan-Pak

No. 116,692

VIA CHRISTI HOSPITALS WICHITA, INC., Appellant, v. KAN-PAK, LLC, ET AL., Appellees.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Subject Matter Jurisdiction—Appellate Review. Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and parties cannot convey subject matter jurisdiction on a court by failing to object to the court's lack of jurisdiction.

2. SAME—Subject Matter Jurisdiction—Appellate Review. Whether subject matter jurisdiction exists is a question of law over which this court's scope of review is unlimited.

3. ADMINISTRATIVE LAW—Kansas Judicial Review Act—Appellate Re- view. When reviewing an agency action under the Kansas Judicial Review Act, a court shall grant relief only when it determines that the agency violated one or more of the provisions listed in K.S.A. 2018 Supp. 77- 621(c)(1)-(8).

4. WORKERS COMPENSATION—Fee Schedule Created by Statute Upheld under Facts of This Case. Under the facts of this case, the Workers Com- pensation Appeals Board's enforcement of the plain language of the fee schedule created under the director of workers compensation's statutory authority was not unreasonable, arbitrary, or capricious under K.S.A. 2018 Supp. 77-621(c)(8).

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 624, 402 P.3d 602 (2017). Appeal from Workers Compensation Board. Opinion filed November 1, 2019. Judgment of the Court of Appeals reversing the Workers Compensation Board is reversed. Judgment of the Workers Compensation Board is affirmed.

Edward D. Heath, Jr., of Law Office of Edward D. Heath, Jr., of Wichita, argued the cause and was on the briefs for appellant.

Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, argued the cause, and Douglas C. Hobbs, of the same firm, of Wichita, was with him on the briefs for appellee Paradigm Management Ser- vices, LLC.

The opinion of the court was delivered by

NUSS, C.J.: This case concerns a fee dispute between a hospital that provided extensive medical services to a severely burned

884 SUPREME COURT OF KANSAS VOL. 310

Via Christi Hospitals Wichita v. Kan-Pak worker and a workers compensation insurance carrier that paid the hospital considerably less than the billed amount for those services. A hearing officer ruled in favor of the carrier, Paradigm Management Services, LLC (Paradigm), essentially holding it had appropriately paid the amount required by the schedule for maximum medical fees established by the director of the Division of Workers Compensation. His decision was upheld by the Workers Compensation Appeals Board (Board). After the hospital, Via Christi Hospitals Wichita, Inc. (Via Christi), appealed to the Court of Appeals under the Kansas Judi- cial Review Act (KJRA), K.S.A. 77-601 et seq., the court reversed. It essentially held the Board's enforcement of the maximum medical fee schedule was unreasonable, arbitrary, and capricious because the applicable fee limiting provision had been accidentally created. So Paradigm owed Via Christi considerably more money. Via Christi Hospitals Wichita, Inc. v. Kan-Pak LLC, 54 Kan. App. 2d 624, 630, 402 P.3d 602 (2017). Now Paradigm has appealed via K.S.A. 20-3018(b). We conclude we have subject matter jurisdiction of this appeal under K.S.A. 2018 Supp. 77-614 of the KJRA. But as a matter of law, the relief sought by Via Christi—and ordered by the Court of Appeals—cannot be granted in this proceeding under K.S.A. 2018 Supp. 77-621(c). So we reverse the Court of Appeals panel and affirm the hearing officer and the Board.

FACTUAL AND PROCEDURAL BACKGROUND

Darin Pinion suffered severe burns while working at Kan-Pak, LLC (Kan-Pak) in 2011 and was treated that same year. Via Christi provided medical treatment in the total billed amount of $1,048,569. Kan-Pak's workers compensation insurance carrier was Travelers Indemnity Company of America (Travelers). Trav- elers contracted with Paradigm, an out-of-state corporation which specializes in medical management of complex workers compensation cases, to assume Travelers' obligations for Pinion's past and future medical needs. Of Via Christi's bill, Paradigm only paid $136,451.60 in purported full payment under the 2011 Schedule of Medical Fees. ("2011 maximum fee schedule"). See, e.g., K.S.A. 2011 Supp. 44-510i; K.A.R. 51-9-7.

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Via Christi Hospitals Wichita v. Kan-Pak

One year earlier, in 2010, the Division of Workers Compen- sation (Division) had created a "stop-loss" provision in its fee schedule. The Division's stated reason for the stop-loss methodology was to compensate hospitals for "unusually costly services rendered during treatment to an injured worker." This provision essentially stated that if the total charges of an inpatient hospital stay equaled or exceeded $60,000, those charges were multiplied by 70 percent to determine the allowed reimbursement. But if the total charges did not reach the $60,000 stop-loss threshold, then hospitals were reimbursed using the Medicare Severity-Diagnosis Related Group (MS-DRG) method which had previously been used. This stop-loss methodology was repeated in the 2011 maximum fee schedule. But without the knowledge of the Division's manager of medical services or the appointed medical administrator (see K.S.A. 2011 Supp. 44-510i), the 2011 version also included the sentence: "If the MS-DRG level of reimbursement ex- ceeds the $60,000 stop-loss threshold, the facility shall be paid billed charges multiplied by 70% or the MS-DRG level whichever is least; all other rules apply to making this determination." (Em- phasis added.) The origin of the "whichever is least" language—upon which Paradigm relies for its lowered payment to Via Christi—is unclear. Meeting minutes contain no indication that anyone within the Division, or advising the Division, had noticed the insertion of this language. The manager of medical services, Anne Haught, was responsible for guiding the 2011 maximum fee schedule through the process of adoption. See K.S.A. 77-602(j) ("'Rule- making' means the process for formulation and adoption of a rule and regulation."). As Haught testified during a hearing, the Divi- sion's adding of the phrase "whichever is least" would have been a significant enough change to come up as part of the process of adopting the 2011 maximum fee schedule. But it was not discussed which, according to her testimony, indicated it was not intended to be there. In fact, no one in the record available to this court explained how this particular language was inserted. The 2011 maximum fee schedule was adopted and incorporated by reference into K.A.R. 51-9-7. See K.S.A. 2011 Supp. 44-510i(c)

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Via Christi Hospitals Wichita v. Kan-Pak

(The workers compensation "director shall prepare and adopt rules and regulations which establish a schedule of maximum fees for . . . hospital . . . services."). While Paradigm relies on the "whichever is least" language in the 2011 maximum fee schedule to justify its lowered payment, Via Christi responds that Paradigm should have paid $732,426.97—70% of the billed charges—or an additional $595,975.37, because the "whichever is least" amending language was accidentally included. This language was not in the 2010 or 2012 versions, or any subsequent year. Via Christi proceeded with the steps set forth in K.S.A. 2015 Supp. 44-510j to try to resolve the fee dispute with Paradigm, which had begun with Paradigm's notification to Via Christi under the statute's subsection (a)(1) regarding the existence of a dispute. When resolution between the parties was unsuccessful, it was followed by Via Christi's request for an informal hearing before the director. K.S.A. 2015 Supp. 44-510j(a)(1). The informal hearing was unsuccessful and the director scheduled a formal hearing. K.S.A. 2015 Supp. 44-510j(d). After the formal hearing, a hearing officer in the Division agreed with Via Christi that the "whichever is least" language was erroneously included. But he held that a hearing officer did not have authority to strike the language and thus could not rule in favor of Via Christi. Via Christi then appealed this decision to the Board under K.S.A. 2015 Supp. 44-510j(d)(2). The Board is within the Divi- sion. See K.S.A. 2015 Supp. 44-555c(a). Like the hearing officer, the Board found the addition of the "whichever is least" language was accidental. But it too ruled it had no authority to void the 2011 maximum fee schedule's amending language to hold in Via Chris- ti's favor. Via Christi then appealed the Board's decision directly to the Court of Appeals under K.S.A. 2016 Supp. 44-556(a). The panel observed that the director of workers compensation was statutorily tasked with adopting rules and regulations "which establish a schedule of maximum fees for medical, surgical, hospital, dental, nursing, vocational rehabilitation or any other treatment or services provided to employees under the Workers Compensation

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Via Christi Hospitals Wichita v. Kan-Pak

Act." Via Christi, 54 Kan. App. 2d at 627 (citing K.S.A. 2016 Supp. 44-510i[c]). The panel then ruled the amendment in the 2011 fee schedule was not correctly promulgated under the Rules and Regulations Filing Act—which made the amendment void. 54 Kan. App. 2d at 629-30 (citing K.S.A. 2016 Supp. 77-415). Specifically, the Act's required "determination of costs by the agency was not done here for the inserted 'whatever is least' language amending the 2011 fee schedule." 54 Kan. App. 2d at 629. The panel effectively held it did have authority, under K.S.A. 2016 Supp. 77-621(c) of the KJRA, to declare the Board's enforcement of the improperly promulgated amendment to the 2011 maximum fee schedule to be unreasonable, arbitrary, or capricious. It reversed the Board and held in Via Christi's favor, no longer limiting the hospital to the payment of approximately 15% of its bill.

"If we were to approve the Board's ruling and enforce this rule, our holding would be as arbitrary as the Board's. Essentially, we would be saying that it is a rule; therefore, it must be enforced even though it was created accidentally. Once created, rules are not indestructible. The Judicial Review Act permits this court to grant relief if the agency action is unreasonable, arbitrary, or capricious. See K.S.A. 2016 Supp. 77-621(c). The enforcement of an accidentally created rule is the very picture of an arbitrary or capricious action, and we reverse the Board's ruling enforcing it." (Emphasis added.) Via Christi, 54 Kan. App. 2d at 631.

Paradigm petitioned for review which we granted under K.S.A. 20-3018(b).

ANALYSIS

After oral arguments, we ordered supplemental briefing on the issue of jurisdiction and whether Via Christi's requested relief could be granted under the KJRA. As explained below, we conclude subject matter jurisdiction exists. But as a matter of law the relief sought by Via Christi cannot be granted in this particular proceeding.

Jurisdiction

K.S.A. 44-556 provides for review of the Board directly to the Court of Appeals. It states in relevant part:

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Via Christi Hospitals Wichita v. Kan-Pak

"(a) Any action of the board pursuant to the workers compensation act, . . . shall be subject to review in accordance with the Kansas judicial review act by appeal directly to the court of appeals." (Emphasis added.)

See, e.g., Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 212 P.3d 239 (2009) (direct appeal from Board). The KJRA is found at K.S.A. 77-601 et seq. The KJRA allows for judicial review of "agency actions." See, e.g., K.S.A. 2018 Supp. 77-603(a); K.S.A. 77-606. According to legislative history, its two main goals are "uniform treatment of agency actions and increased accessibility to the court system." Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 777, 148 P.3d 538 (2006). Potential judicial review of an agency action begins with a petition for review to the court. See K.S.A. 2018 Supp. 77-614. The petition's pleading requirements are contained in subsection (b):

"A petition for judicial review shall set forth:

"(1) The name and mailing address of the petitioner;

"(2) the name and mailing address of the agency whose action is at issue;

"(3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action;

"(4) identification of persons who were parties in any adjudicative proceedings that led to the agency action;

"(5) facts to demonstrate that the petitioner is entitled to obtain judicial review;

"(6) the petitioner's reasons for believing that relief should be granted; and

"(7) a request for relief, specifying the type and extent of relief requested."

This court has held that because a "'petition for judicial review of an agency action is jurisdictional[,] . . . the failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant's statutorily granted right of appeal.'" Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 397, 204 P.3d 562 (2009) (citing Bruch, 282 Kan. 764, Syl. ¶ 2). Moreover, the compliance with these pleading requirements must be "strict" before a court may exercise jurisdiction over the petition. 288 Kan. at 399. But

VOL. 310 SUPREME COURT OF KANSAS 889

Via Christi Hospitals Wichita v. Kan-Pak the pleading need not mirror the language of the statutory basis for the specific relief requested. 288 Kan. at 406-07. And see K.S.A. 2018 Supp. 77-614(c) ("Failure to include some of the information listed in subsection [b] in the initial petition does not deprive the reviewing court of jurisdiction over the appeal. Leave to supplement the petition with omitted information required by subsection [b] shall be freely given when justice so requires."). Here, the parties do not dispute Via Christi's strict compliance with the pleading requirements of K.S.A. 2018 Supp. 77-614(b). In other words, they do not dispute jurisdiction exists. However, "[p]arties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and parties cannot convey subject matter jurisdiction on a court by failing to object to the court's lack of jurisdiction." Kingsley, 288 Kan. at 395. Accordingly, issues relating to the court's subject matter jurisdiction may be raised by the court itself. See Wiechman v. Huddleston, 304 Kan. 80, 84-85, 370 P.3d 1194 (2016). But after our independent examination based upon the principles identified in Kingsley and Bruch, we agree with the parties. In short, jurisdiction exists. See Kingsley, 288 Kan. at 395 (whether subject matter jurisdiction exists is a question of law over which this court's scope of review is unlimited).

Available relief

But of course the existence of jurisdiction does not end the matter. As we have stated:

"When reviewing an administrative action under the KJRA, a court shall grant relief only when it determines that the agency violated one or more of the provisions listed in K.S.A. 2016 Supp. 77-621(c)(1)-(8). Bluestem Telephone Co. v. Kansas Corporation Comm'n, 52 Kan. App. 2d 96, 107, 363 P.3d 1115 (2015). Because appellants are the ones asserting the agency's action is invalid, they bear the burden of proving the invalidity on appeal. See K.S.A. 2016 Supp. 77- 621(a)(1); In re Equalization Appeal of Wagner, 304 Kan. 587, 597, 372 P.3d 1226 (2016)." (Emphasis added.) Bd. of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 298, 318, 393 P.3d 601 (2017).

As a result, we next review K.S.A. 2018 Supp. 77-621(c) to begin analyzing whether any of its provisions were violated by the agency. It states in relevant part that "(a) except to the extent that this act or another statute provides otherwise":

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Via Christi Hospitals Wichita v. Kan-Pak

"(c) The court shall grant relief only if it determines any one or more of the following:

(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;

(2) the agency has acted beyond the jurisdiction conferred by any provision of law;

(3) the agency has not decided an issue requiring resolution;

(4) the agency has erroneously interpreted or applied the law;

(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;

(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;

(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or

(8) the agency action is otherwise unreasonable, arbitrary or capricious." (Emphasis added.)

On appeal to this court, the parties have essentially narrowed the field of battle—i.e., the possible statutory ground for Via Christi's relief—to subsection (8). See Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 55) ("The Supreme Court will not consider issues not raised before the Court of Appeals or issues not presented or fairly included in the petition for review, cross-petition, or conditional cross-petition. The court, however, may address a plain error not presented."). In re Adoption of T.M.M.H., 307 Kan. 902, 918, 416 P.3d 999 (2018) (citing to 2018 version of the Rule). To the extent that resolution of the issues requires this court to interpret the KJRA or its regulations, our review is unlimited. See Platt v. Kansas State University, 305 Kan. 122, 126, 379 P.3d 362 (2016) (interpreting KJRA); Cole v. Ma- yans, 276 Kan. 866, 873, 80 P.3d 384 (2003) (interpreting regulations). As mentioned, subsection (8) essentially is the ground for relief relied upon by the panel to reverse the Board. Via Christi, 54 Kan. App. 2d at 631 (citing K.S.A. 77-621[c] and holding: "The

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Via Christi Hospitals Wichita v. Kan-Pak enforcement of an accidentally created rule is the very picture of an arbitrary or capricious action, and we reverse the Board's ruling enforcing it."). And it is the sole basis relied upon by Via Christi in its supplemental brief on jurisdiction ordered by this court. But as a matter of law, subsection (8) cannot provide Via Christi relief in this case—as explained below. See Casco v. Armour Swift- Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007) ("Appellate courts may only review the Board's decisions upon questions of law. K.S.A. 2005 Supp. 44-556[a]."). Typically, we begin our analysis by reviewing guidance to determine when an "agency action is otherwise unreasonable, arbitrary or capricious."

"Essentially, the test under K.S.A. 77-621(c)(8) determines the reasonableness of the agency's exercise of discretion in reaching its decision based upon the agency's factual findings and the applicable law. See Sunflower Racing, Inc., 256 Kan. at 445." (Emphasis added.) Wheatland Electric Cooperative v. Polan- sky, 46 Kan. App. 2d 746, 757, 265 P.3d 1194 (2011).

The court used similar language in In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 269 P.3d 876 (2012): "A challenge under K.S.A. 2010 Supp. 77-621(c)(8) attacks the quality of the agency's reasoning." See also Gellhorn & Levin, Administra- tive Law and Process in a Nutshell, p. 103 (5th ed. 2006) ("[T]he emphasis in arbitrariness review [is on] the quality of an agency's reasoning.") (Emphasis added.); 46 Kan. App. 2d at 1115. While we would usually then proceed with a thorough "reasonableness" analysis, we need not do so to resolve the narrow issue as presented by Via Christi when it initiated this proceeding. We first acknowledge that overall, K.S.A. 2018 Supp. 44-510i provides the authority of the director and the medical administrator on the general issue of maximum fees for medical benefits to injured workers and proceedings for resolving resultant fee disputes. To that end, the director

"shall prepare and adopt [1] rules and regulations which establish a schedule of maximum fees for medical, surgical, hospital, dental, nursing, vocational rehabilitation or any other treatment or services provided or ordered by health care providers and rendered to employees under the workers compensation act and [2] procedures for appeals and review of disputed charges or services rendered by health care providers under this section." (Emphases added.) K.S.A. 2018 Supp. 44-510i(c).

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As for the medical administrator—appointed by or contracted with the director—his duties include "[p]reparing, with the assistance of the advisory panel, the fee schedule for health care services as set forth in this section." (Emphasis added.) K.S.A. 2018 Supp. 44-510i(a), (b)(1); see generally Via Christi, 54 Kan. App. 2d at 627-28. In sum, by statute the director was ultimately responsible for making the 2011 maximum fee schedule amendment that Via Christi argued, and both the hearing officer and Board found, was accidentally created. Yet we note the director is not a party to the fee dispute proceeding initiated by Via Christi; nor did his purported faulty rulemaking appear as a cause of action there. Rather, the sole issue presented by Via Christi in front of the hearing officer, the Board, and the panel was the amount of the fee allegedly owed by Paradigm to Via Christi for medical services to Pinion. In effect, Via Christi framed the issue by electing to proceed under K.S.A. 2018 Supp. 44-510j, a detailed statute exclusively devoted to the procedures and scope for resolving workers compensation medical fee disputes. The statute's limited scope is made clear in its opening sentence:

"When an employer's insurance carrier . . . disputes all or a portion of a bill for services rendered for the care and treatment of an employee under this [workers compensation] act, the following procedures apply: . . . ." K.S.A. 2018 Supp. 44-510j.

The statute is replete with references to: (1) the exclusivity of this fee dispute issue; (2) the limitation on the particular parties, e.g., the insurance carrier and the service provider, to the fee-specific dispute; and (3) the binding effect of the maximum fee schedule on the provider. For starters, it provides that if an insurance carrier (Paradigm) disputes a bill, it "shall notify the provider (Via Christi) within 30 days of receipt of the bill of the specific reason for refusing payment or adjusting the bill." K.S.A. 2018 Supp. 44- 510j(a)(1); K.S.A. 2018 Supp. 44-510j(i) (defining "carrier" to include insurance company and "provider" to include hospital). Then, the provider (Via Christi) may forward additional information and must "send any request for reconsideration within 30 days of receiving written notice of the bill dispute." (Emphasis added.) K.S.A. 2018 Supp. 44-510j(a)(1). If after the additional

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Via Christi Hospitals Wichita v. Kan-Pak information is provided the bill dispute still is not resolved, only the carrier, provider, or employer may apply for an informal hearing before the Director. K.S.A. 2018 Supp. 44-510j(a)(1). As for further describing the limitation on those entities involved, copies of the informal hearing application "shall be sent to all parties to the dispute and the employee." (Emphasis added.) K.S.A. 2018 Supp. 44-510j(b). The application itself is limited, i.e., it "shall include copies of the disputed bills, all correspond- ence concerning the bills and any additional written information the party deems appropriate." (Emphases added.) K.S.A. 2018 Supp. 44-510j(b). Additionally, "[w]ithin 20 days of receiving the application . . ., the other parties to the dispute shall send any additional written information deemed relevant to the dispute to the director." (Emphasis added.) K.S.A. 2018 Supp. 44-510j(b); see also K.S.A. 77-602(f) ("'Party to agency proceedings' or 'party' in context so indicating, means . . . [2] a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceeding.'"). From there, the director or the director's designee, i.e., the hearing officer, proceeds toward the only purpose of the informal hearing that is expressed in the statute: "to hear and determine all disputes as to such bills and interest due thereon." (Emphasis added.) K.S.A. 2018 Supp. 44-510j(c). In the informal hearing, evidence "shall be limited to the written submissions of the parties." (Em- phasis added.) K.S.A. 2018 Supp. 44-510j(c). As for those who may participate, e.g., the parties—any carrier, provider or employer "may personally appear in or be represented at the hearing." K.S.A. 2018 Supp. 44-510j(c). If the informal hearing does not result in a settlement between the parties, the hearing officer will schedule a formal hearing. K.S.A. 2018 Supp. 44-510j(c)-(d). But before a formal hearing occurs, the director may seek independent reviews of the disputed bill for consideration at the hearing. First, a utilization review of service providers can be performed and result in a report indicating, among other things, whether a provider's "fees for such treatment or services were excessive." (Emphases added.) K.S.A. 2018 Supp. 44-510j(d)(1). Second, after receiving the report the director may also order a "peer review." K.S.A. 2018 Supp. 44-

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510(d)(1). This is an evaluation by a peer review committee of "the appropriateness, quality and cost of health care and health services provided a patient." (Emphasis added.) K.S.A. 44-508(o); see Greathouse v. KASB Risk Management Services, 44 Kan. App. 2d 29, 32, 237 P.3d 1250 (2010) (peer review of the audit). The officer presiding at the formal hearing—the hearing officer, medical administrator, or both (K.S.A. 2018 Supp. 44- 510j[d][2])—considers whether "a provider or facility has made excessive charges or provided or ordered unjustified treatment, services, hospitalization or visits." (Emphasis added.) K.S.A. 2018 Supp. 44-510j(d)(2). And if the hearing officer so holds, such provider "may be ordered to repay any fees or charges col- lected therefor." K.S.A. 2018 Supp. 44-510j(d)(2). Additionally, if it is determined that, among other things, the "fees for such treatment or services were excessive," a report may be sent to the li- censing board of the provider. K.S.A. 2018 Supp. 44-510j(d)(2). As with the informal hearing, the "parties to the dispute," e.g., carrier and provider "shall have the right to appear or be represented . . ." at the formal hearing. K.S.A. 2018 Supp. 44- 510j(d)(2). Additionally, the "parties to the dispute . . . may produce witnesses, including expert witnesses," and "such other relevant evidence as may be otherwise allowed under the workers compensation act." K.S.A. 2018 Supp. 44-510j(d)(2). But even more important than the statutory language regarding the exclusivity of the fee dispute issue and the limitation on the particular entities allowed to participate in the dispute, is the binding effect of the fee schedule on the provider. This "binding effect" concept appears repeatedly. First, subsection (h) of the designated fee dispute statute provides "[a]ny . . . hospital . . . which accept[s] the terms of the workers compensation act by providing services or material thereunder shall be bound by the fees approved by the director." (Emphasis added.) Second, that subsection tracks with subsection (e) of the immediately preceding statute, K.S.A. 2018 Supp. 44-510i: "All fees and other charges paid for . . . treatment, care and attendance provided by any . . . hospital . . . shall not exceed the amounts prescribed by the schedule of maximum fees established under this section . . . ." (Emphasis added.) Third, subsection (c)(3) of K.S.A. 2018 Supp. 44-510i

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Via Christi Hospitals Wichita v. Kan-Pak provides that any billing which a hospital makes to any patient in connection with "the fee schedule adopted under this section, which is or may be in excess of or not in accordance with such . . . fee schedule, is unlawful, void and unenforceable as a debt." (Em- phases added.) In short, the theme throughout all of K.S.A. 2018 Supp. 44- 510j is consistent with its opening sentence: its narrow purpose is to resolve fee disputes, typically between carrier and provider. As a result, we conclude the issue of the rulemaking by the director— and the results of any accidental rulemaking—were not properly before the Board on appeal from the hearing officer. See K.S.A. 77-602(j) ("'Rulemaking' means the process for formulation and adoption of a rule and regulation."). What was proper was the precise issue of whether Via Christi has charged fees in excess of the limits permitted in the 2011 maximum fee schedule. See K.S.A. 2011 Supp. 44-510i(e), (c)(3); K.S.A. 44-510j(h). So we conclude that the Board's refusal to expand the parameters of the fee dispute statute—K.S.A. 2018 Supp. 44-510j—was not, as Via Christi alleges, "unreasonable, arbitrary or capricious" as required for relief under K.S.A. 2018 Supp. 77-621(c)(8). See Wheatland Electric, 46 Kan. App. 2d at 757 ("Essentially, the test under K.S.A. 77- 621[c][8] determines the reasonableness of the agency's exercise of discretion in reaching its decision based upon the agency's factual findings and the applicable law."). Similarly, when the Board upheld the plain language ("whichever is least") of the 2011 maximum fee schedule created under the director's statutory authority, we fail to see how its enforcement of that schedule is unreasonable, arbitrary, or capricious. Protests of Oakhill Land Co., 46 Kan. App. 2d at 1115 ("A challenge under K.S.A. 2010 Supp. 77-621[c][8] attacks the quality of the agency's reasoning."); see also Wheatland Electric, 46 Kan. App. 2d at 757. Cf. L.E.H. ex rel. D.H. v. State Dept. of Social and Rehabilitation Services, 44 Kan. App. 2d 798, 803, 241 P.3d 167 (2010) (When regulation's meaning is clear from the plain language used, court generally should give the regulation its plain- language meaning.). Having agreed with Paradigm on this dispositive point, we need not reach any others alleged. See Keiswetter v. State, 304

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Via Christi Hospitals Wichita v. Kan-Pak

Kan. 362, 373, 373 P.3d 803 (2016) (alternate bases for rejecting plaintiff's relief need not be considered by appellate court) (citing cases).

CONCLUSION

The decision of the Court of Appeals reversing the Board is reversed. The decisions of the Board and the hearing officer are affirmed.

LUCKERT and JOHNSON, JJ., not participating.

1 MICHAEL J. MALONE, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 116,692 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616. Justice Lee A. Johnson retired on September 6, 2019, and did not participate in the decision of No. 116,692.

VOL. 310 SUPREME COURT OF KANSAS 897

Reardon v. King

No. 114,937

KEVIN E. REARDON, Special Administrator, for the Estate of MARILYN K. PARSONS, Appellee, v. JON M. KING, Defendant, and THE TRUST COMPANY OF KANSAS, Appellant.

___

SYLLABUS BY THE COURT

EMPLOYER AND EMPLOYEE—Duty of Reasonable Care Owed to Third Parties When Employees Acting within Scope of Their Employment. In Kan- sas, an employer owes a duty of reasonable care under the circumstances to prevent harm to third parties caused by its employees when those employees are acting within the scope of their employment. More particularized articulations of this duty are disapproved.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 17, 2017. Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed November 15, 2019. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

Rachel N. Wetta, of Foulston Siefkin LLP, of Wichita, argued the cause, and Darrell L. Warta, of the same firm, was with her on the briefs for appellant.

Michael P. Crow, of Crow & Associates, of Leavenworth, argued the cause, and Peter C. Robertson and Dan Heinz, of the same firm, were with him on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: The Trust Company of Kansas (TCK) employed Jon M. King, a Kansas-licensed attorney, as a trust officer. TCK had a policy prohibiting employees from practicing law during employment. Unbeknownst to TCK, King represented his TCK client—Marilyn K. Parsons—in legal matters before, during, and after his employment with TCK. In his capacity as a trust officer, King would transfer funds from Parsons' TCK account to her personal account to pay a flat rate legal fee of $5,000 per month. Once TCK learned about King's attorney-client relationship with Par- sons, TCK filed a complaint of suspected elder abuse with the Kansas Department of Social and Rehabilitation Services and an ethics complaint with the Kansas Disciplinary Administrator's Of- fice.

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Further investigation by the Kansas Disciplinary Administra- tor's Office revealed that Parsons paid King approximately $250,271.50 in attorney fees during his employment at TCK. As a result, King voluntarily surrendered his license to practice law. See In re King, 297 Kan. 208, 300 P.3d 643 (2013). Soon after, Parsons filed a lawsuit against TCK and King, asserting various theories of liability. The case went to trial, and a jury found TCK liable for "negligent training" and King liable for breach of fiduciary duty. The Court of Appeals reversed the jury's verdict against TCK, finding the evidence insufficient. Accordingly, the panel remanded the case with instructions to enter judgment as a matter of law in favor of TCK. On review, we conclude the district court's instructions failed to present the jury with an accurate statement of our negligence law and incorrectly separated Parsons' negligence claim against TCK into two causes of action. As a result of these errors, questions of fact remain. We reverse the Court of Appeals and remand this matter for a new trial decided on proper instructions.

PROCEDURAL BACKGROUND

At this stage of the litigation, the key facts are procedural and they are not in dispute. Parsons sued TCK and King seeking $250,271.50 in damages plus an additional $12,111.99 for loss of income and loss of investment appreciation. After Parsons amended her complaint several times and each party filed multiple pretrial questionnaires, the district court issued a pretrial order describing three separate claims against TCK: "(1) breach of contract, (2) breach of fiduciary duty, and (3) failure to properly supervise its employee, Jon King." The case proceeded to a four-day jury trial. At the close of Parsons' case-in-chief, TCK moved for judgment as a matter of law on all claims against TCK. After hearing oral argument, the court granted TCK's motion for judgment as a matter of law on part of Parsons' breach of contract claim. The court then summarized Parsons' remaining claims as follows:

"What I have is—is the—the claims that plaintiff has asserted against TCK that survived is their breach of contract claim, partially, one of their specifications of

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Reardon v. King breach of contract, I've ruled that there's not evidence to support there was a breach.

"[S]o, breach of contract, breach of fiduciary duty, negligent representation, and negligent supervision."

The district court proceeded to finalize its jury instructions and verdict form. The instructions included a claim of "negligent supervision and training" against TCK:

"INSTRUCTION NO. 18

"Negligent supervision and training claim against Trust Company of Kansas

"The plaintiff, Marilyn Kay Parsons, claims the defendant, Trust Company of Kansas, failed to adequately supervise and train Jon M. King by the following:

"(1) Failing to train and orient Jon M. King that he was prohibited from practicing law for TCK clients while employed by TCK

"(2) Failing to provide training regarding TCK company policies

"(3) Failing to provide training regarding fiduciary duties to TCK clients

"(4) Failing to verify that Jon M. King did not engage in the private practice of law while employed by TCK

"The plaintiff must prove her claim for negligent supervision and training by a preponderance of the evidence.

"In response to this claim, the defendant, Trust Company of Kansas, denies that it failed to adequately supervise and train Jon M. King. It maintains that plaintiff's losses are not attributable to any failure of training and supervision on its part, but rather to the intentional wrongful acts of Jon M. King, of which it was not aware."

"INSTRUCTION NO. 25

"Negligent supervision and training

"In considering the plaintiff's claim against Trust Company of Kansas for negligent supervision and training, you should consider the following:

"1. An employer has a duty to supervise an employee it knows, or has reason to know, is unfit to undertake the responsibilities of his or her employment.

"2. Negligent supervision entails either inadequate oversight and review of an employee in the performance of his or her job duties or failing to control an employee with propensities that might pose a danger.

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"3. A claim based on negligent training depends upon establishing facts showing that more or better training would have prevented the harm.

"The plaintiff must prove her claim for negligent supervision and training by a preponderance of the evidence."

But the verdict form separated the "claims" of negligent supervision and negligent training into two distinct causes of action:

"PLAINTIFF'S CLAIMS AGAINST THE DEFENDANT TRUST COMPANY OF KANSAS

. . . .

"10. Do you find that plaintiff has proven by a preponderance of the evidence that the defendant Trust Company of Kansas negligently failed to supervise Jon M. King? . . .

"11. Do you find that plaintiff has proven by a preponderance of the evidence that the defendant Trust Company of Kansas negligently failed to train Jon M. King?"

TCK then questioned the instructions and informed the court that "[t]he claim against us was stated negligent supervision and training claim. There was 'and' it was one claim with both supervision and training." But the court explained the separation was intentional because negligent supervision and negligent training had "different standard[s]." After this explanation, TCK had no further objection. These instructions, along with the verdict form, were given to the jury. In the end, the case submitted to the jury included five claims against TCK: (1) breach of contract; (2) breach of fiduciary duty; (3) negligent misrepresentation; (4) negligent failure to supervise King; and (5) negligent failure to train King. Ultimately, the jury found TCK liable for negligent training and King liable for breach of fiduciary duties. The jury returned a defendant's verdict on the remainder of Parsons' claims against TCK and King. The jury awarded damages of $125,135.75 plus interest of $6,055.99—half the amount claimed—jointly and severally against TCK and King. TCK timely filed a renewed motion for judgment as a matter of law, or, in the alternative, a new trial. The district court denied

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Reardon v. King the motion and TCK timely appealed. King did not appeal the jury's finding against him for breach of fiduciary duty, and Parsons did not cross-appeal. At the Court of Appeals, TCK argued: (1) there was insufficient evidence to support the verdict; (2) the district court should have granted its motion for judgment as a matter of law; and (3) the jury instructions on Parsons' negligence claims were erroneous. Parsons v. King, No. 114,937, 2017 WL 1035190, at *1 (Kan. App. 2017) (unpublished opinion). The Court of Appeals reversed and remanded with instructions for the district court to enter judgment as a matter of law in favor of TCK. 2017 WL 1035190, at *5. The panel found the evidence could not support the jury verdict for negligent failure to train even when considering all the facts and inferences that could reasonably be drawn in Parsons' favor. 2017 WL 1035190, at *4. According to the panel, the evidence failed to show more or better training would have prevented Parsons' loss and that it "rather . . . focused on whether TCK adequately supervised King." 2017 WL 1035190, at *4. Parsons filed a petition for review arguing the Court of Ap- peals erred by finding TCK was entitled to judgment as a matter of law on Parsons' negligence claim. TCK responded to Parsons' petition, asking us to consider the district court's jury instructions on Parsons' negligence claim or claims. We granted Parsons' petition and review TCK's issue raised in its response to provide guidance on remand. See Supreme Court Rule 8.03(c)(3) (2017 Kan. S. Ct. R. 55) ("In a civil case, the response also may present for review adverse rulings or decisions of the district court that should be considered by the Supreme Court in the event of a new trial, provided that the respondent raised the issues in the Court of Ap- peals."); see also Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406, 443, 228 P.3d 1048 (2010) (reviewing an issue raised in a response to petition for review under Supreme Court Rule 8.03[c][3]).

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ANALYSIS

We take the unusual step of beginning with our conclusion. In short, we agree with both parties. The trial court's jury instructions on Parsons' negligence claim were erroneous. And as a direct result of this error, the Court of Appeals erred in granting judgment as a matter of law in favor of TCK. The instructions and verdict form in this case were so erroneous that an after-the-fact evaluation of the evidence is not possible. The jury instructions did not adequately or accurately explain the elements of Parsons' negligence claim. This prevented the jury from ever being able to consider whether Parsons had sufficiently proven each of the elements of the claim. Given this failure, any review of the evidence for sufficiency became futile and the case must now be returned to the district court for a new trial on proper instructions. The proper place to begin our analysis is with the jury instructions. When reviewing jury instruction issues, we follow a three step process to determine: (1) whether the issue is reviewable; (2) whether any error occurred; and (3) whether the error requires reversal. Siruta v. Siruta, 301 Kan. 757, 771, 348 P.3d 549 (2015). The first and third steps are related because the standard for determining whether an error requires reversal depends on whether the party preserved the issue. 301 Kan. at 771. TCK failed to object to the district court's jury instruction and verdict form with respect to Parsons' claim of negligent supervision and negligent training. When an alleged instruction error was not objected to below we still review whether the instruction was legally and factually appropriate, but will reverse only for "clear error." 301 Kan. at 772 ("'"An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict."'"). When conducting an error analysis, we must determine whether the instructions were legally and factually appropriate. 301 Kan. at 775. We consider the instructions as a whole and review whether the instructions "'properly and fairly stated the law as applied to the facts of the case and could not have reasonably misled the jury.'" 301 Kan. at 775 (quoting State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 [2014]). For an instruction to be legally appropriate, it

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Reardon v. King must fairly and accurately communicate the applicable law to the jury. Castleberry v. DeBrot, 308 Kan. 791, 802, 424 P.3d 495 (2018). Thus, determining whether the instructions in this case were legally appropriate require us to review the law applicable to a negligence cause of action. In its simplest form, a negligence claim requires a plaintiff to prove four essential elements: (1) defendant owed a duty to the plaintiff; (2) defendant breached that duty; (3) plaintiff's injuries were caused by the defendant's breach; and (4) plaintiff suffered damages. Patterson v. Cowley County, Kansas, 307 Kan. 616, 622, 413 P.3d 432 (2018). The first of these elements—the existence of a duty—is actually a question of law rather than one of fact. Siruta, 301 Kan. at 766-67. Because the existence of a duty is a question of law, the court must decide whether a duty exists and how to articulate that duty. Dobbs, Hayden & Bublick, The Law of Torts § 164 (2d ed. 2019). Thus, one of the crucial jury instructions in any negligence cause of action must be the trial court's articulation of the duty owed by the defendant to the plaintiff. If this instruction is wrong or misleading, the jury will be incapable of performing its fact- finding role in determining the existence (or lack thereof) of the latter three elements. Here, Parsons asserted a negligence claim against TCK as an employer. Although this claim involves the conduct of TCK's employee and alleged harm to a third person, the cause of action seeks to impose direct liability on TCK for its allegedly negligent acts causing the harm, not for any negligence or fault on the part of the employee. As a general rule, in the absence of a "special relationship" a defendant does not owe a duty to third parties. C.J.W. v. State, 253 Kan. 1, 7-8, 853 P.2d 4 (1993). Kansas common law, however, recognizes a "special relationship" between employers and third parties who come into contact with their employees. See, e.g., Kansas State Bank & Tr. Co. v. Specialized Transpor- tation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991). This relationship creates a legal duty owed to the third party by the employer. But how is this duty defined by Kansas law and how should it be explained to a jury?

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A review of our caselaw makes it clear that an employer owes a duty of reasonable care under the circumstances to prevent harm to third parties caused by its employees when those employees are acting within the scope of their employment. See, e.g., Kansas State Bank & Tr. Co., 249 Kan. at 362 (explaining that liability results from the employer having "reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor"); Plains Resources, Inc. v. Gable, 235 Kan. 580, 590, 682 P.2d 653 (1984) ("an employer has a duty to use reasonable care in the selection and retention of employees"); see also Restatement (Third) of Torts § 41, comment c (2012) ("The duty . . . is to exercise reasonable care under the circumstances."). By defining an employer's duty as one of "reasonable care," we reserve the question of what specific acts constitute "reasonable care" in any of the infinite factual circumstances that could exist to the second element of a negligence claim—breach of the duty. And determining whether a legal duty was breached is a question of fact for the jury. We acknowledge that there has been a trend in recent years toward defining the legal duty owed in negligence cases in ever narrower and more particularized ways. This can have the delete- rious effect of taking the fact question of breach away from the jury "under the guise of deciding the question of 'duty' in its primary sense." Goldberg & Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 713 (2001). Particularized duties tend to sneak conclusions about the facts of particular cases into what are intended to be general standards. Dobbs, The Law of Torts § 226 (2000). But duty rules are not meant to be fact specific. Rather, they are to set broadly applicable guidelines for public behavior. Cardi, Purging Foreseeabil- ity, 58 Vand. L. Rev. 739, 754 (2005). Otherwise, the line between the first and second elements of a negligence claim—duty and breach—are blurred. Today's case is a good example of that trend. The instructions told the jury below that TCK had specific, discrete duties "to train" and "to supervise." But this misstates Kansas law. Employers in Kansas do not have a duty to third parties to train or to supervise

VOL. 310 SUPREME COURT OF KANSAS 905

Reardon v. King their employees. They have a duty to exercise reasonable care under the circumstances. A failure to either train or to supervise may (or may not) constitute a breach of that duty—just as other specific facts may (or may not) constitute a breach. But these are fact questions properly belonging to the second element of the negligence claim, not the first. The Supreme Court of Illinois helpfully confronted this un- fortunate trend in Marshall v. Burger King Corporation, 222 Ill. 2d 422, 856 N.E.2d 1048 (2006). There, the plaintiff had filed a negligence action against Burger King due to the death of his son. The decedent was killed when a car crashed through the window of the Burger King restaurant where the decedent was eating. Plaintiff alleged that Burger King and Davekiz, Inc.—Burger King's franchi- see—were negligent for failing to place safety barriers such as ver- tical concrete pillars or poles in front of the restaurant. This, they argued, would have prevented Fritz' car from coming through the window and killing the decedent. Defendants moved to dismiss arguing they owed no duty to protect the decedent from the injury caused by Fritz' car. The trial court granted the motion holding there was no duty owed by the defendants to place barriers in front of their restaurant. The court reasoned that, given the likelihood of such an accident happening was minor, recognizing a duty for all restaurant owners to construct such barriers was impractical. Marshall, 222 Ill.2d at 427. Ultimately, the Illinois Supreme Court reversed the trial court. 222 Ill.2d at 425. In doing so, the court observed that by advocating for a particularized statement of duty, Burger King and the other defendants were

"actually requesting that we determine, as a matter of law, that they did not breach their duty of care. It is inadvisable for courts to conflate the concepts of duty and breach in this manner. Courts could, after all, 'state an infinite number of duties if they spoke in highly particular terms,' and while particularized statements of duty may be comprehensible, 'they use the term duty to state conclusions about the facts of particular cases, not as a general standard.' 1 D. Dobbs, Torts § 226, at 577 (2001); see also 54 Vand. L. Rev. at 712-17 (discussing problems associated with using the duty element of negligence to render decisions that no breach occurred as a matter of law). Thus, the issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation. Because of the special relationship between defendants and the decedent, they

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Reardon v. King owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That question cannot be answered at this stage of the proceedings. See Espinoza, 165 Ill.2d at 114 (issue of breach is for jury to decide provided there is genuine issue of material fact regarding that issue)." 222 Ill.2d at 443-44.

We find this discussion instructive and adopt the same posture toward today's case. Like the trial court in Marshall, the trial court here constructed a definition of TCK's duty so fact specific that on review by the Court of Appeals, the line between duty and breach disappeared. In other words, the duty was defined with such par- ticularity that on review, the Court of Appeals determined that there was no evidence of breach. Instructing the jury on a "duty to supervise" or a "duty to train" is analogous to instructing a jury that Burger King has a duty to install concrete barriers outside its restaurants. Rather than providing the jury with a standard against which it could judge TCK's actions, the instructions described allegations which, if proven, might constitute a breach of TCK's reasonable care duty. The breach element of Parsons' negligence claim concerns the factual question of whether TCK took reasonable steps, in light of the foreseeable probability and magnitude of any harm, to prevent harm. See Restatement (Third) of Torts: Physical & Emotional Harm § 41, comment e (2012). To fulfill its duty of reasonable care to protect Parsons against risks posed by King, TCK did not necessarily have to supervise or train King. A jury might find that, through other actions, TCK did fulfill its duty of reasonable care. Or alternatively, the jury might decide that some act or omission by TCK falling outside the categories of "train" or "supervise" amounted to a breach of its duty of reasonable care. This determination, however, should be left to the jury. The instructions, combined with the verdict form, likewise erroneously created two negligence causes of action where only one existed. By separating negligent supervision and negligent training into two separate claims the jury was left to assume that an employer owes two separate legal duties to a third party: (1) a duty to supervise its employees and (2) a duty to train its employees. Negligence causes of action, however, are wholly derivative of the duty owed by the defendant. See Boulanger v. Pol, 258 Kan. 289, 296-97, 900 P.2d 823 (1995) ("'In Kansas it is a fundamental

VOL. 310 SUPREME COURT OF KANSAS 907

Reardon v. King rule actionable negligence must be based on a breach of duty.'"). And in Kansas, an employer owes third parties a single duty of reasonable care, as we have described. While an employer's practices when hiring, training, and supervising its employees may be evidence of a breach of an employer's duty of reasonable care to third parties, they are not separate causes of action. Here, TCK only owed Parsons one duty— the duty to exercise reasonable care under the circumstances to prevent Parsons or any other customer from being harmed by its employees. And with only one duty recognized, only one cause of action for breach existed. To the extent our prior caselaw contributed to this confusion by using terms like "negligent supervision" or "negligent training," we make the conscientious decision today to move away from such characterizations of the anatomy of a negligence claim in Kansas. We have concluded the jury instructions erred: (1) by failing to properly state the legal duty owed by TCK to Parsons; and (2) by separating Parsons' negligent claim into two separate causes of action. Now we must determine whether these errors were harmless or whether they require reversal. Because TCK failed to object to the instructions at trial, we will reverse only for clear error. Siruta, 301 Kan. at 772. "'"An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict."'" Siruta, 301 Kan. at 772 (quoting Hawkinson v. Bennett, 265 Kan. 564, 581, 962 P.2d 445 [1998]). In other words, if we are firmly convinced that the legally inappropriate definition of negligence affected the verdict, we must reverse. See Siruta, 301 Kan. at 780; State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012). This case is unique in that the effect of the error on the verdict did not become clear until the Court of Appeals reviewed the verdict. After all, Parsons won at trial. But due to the defects in the instructions, the verdict was infirm on appeal. In fact, the verdict was flawed at the outset because the jury found TCK liable for breaching a duty that does not exist. Had the jury been properly instructed, any jury verdict in favor of Parsons on her negligence claim would likely have survived

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Reardon v. King a sufficiency challenge. It was only because the jury was factually cramped by the erroneous instructions that the Court of Appeals was able to reach its conclusion of insufficient evidence. We do not know whether a properly instructed jury would return a verdict in favor of Parsons. But we are firmly convinced that the legal errors we have identified with the instructions did affect the verdict. Therefore, we must reverse and remand for a new trial on legally appropriate instructions.

Reversed and remanded with directions.

1 BEIER and JOHNSON, JJ., not participating.

2 DAVID WILLIAM ROGERS, District Judge, assigned.

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 114,937. Justice Johnson retired effective September 6, 2019. 2REPORTER'S NOTE: District Judge Rogers was appointed to hear case No. 114,937 vice Justice Beier under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

VOL. 310 SUPREME COURT OF KANSAS 909

State v. Johnson

No. 113,228

STATE OF KANSAS, Appellee, v. DAQUANTRIUS S. JOHNSON, Appellant.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Structural Error Affects Defendant's Basic Protec- tions during Trial. Structural error occurs when the error interferes with the court's basic function and denies a defendant the basic protections afforded during criminal trial. Structural errors are so pervasive they defy analysis by harmless-error standards and require automatic reversal.

2. TRIAL—No Structural Error under These Facts—No Automatic Reversal. An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal.

3. SAME—Defendant Stipulates to Element of Crime—Jury Trial Waiver Re- quired. When a defendant stipulates to an element of a crime, the defendant has effectively waived his or her right to a jury determination of that element. Thus, a valid jury trial waiver—limited to the stipulated element or elements—is required.

Review of the judgment of the Court of Appeals in 53 Kan. App. 2d 734, 391 P.3d 711 (2017). Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed November 27, 2019. Judgment of the Court of Appeals reversing the district court is reversed and the case is remanded to the Court of Appeals with directions. Judgment of the district court is affirmed in part and reversed in part as to the issues subject to review.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Ben- nett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

STEGALL, J.: Daquantrius Johnson was charged with criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm in Sedgwick County District Court. A jury convicted Johnson of all three counts, and the court imposed a 43- month sentence, 12 months' postrelease supervision, and lifetime registration under K.S.A. 2013 Supp. 22-4905(b)(2). The Court of

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State v. Johnson

Appeals reversed Johnson's convictions and remanded for a new trial, holding that the trial judge "nodding off" on the first day of trial was structural error. The lower court also held that the district court did not have to obtain a limited jury trial waiver before accepting Johnson's stipulation to an element of the possession charge. We reverse both of the Court of Appeals' holdings and remand to that court for further consideration of all issues raised by Johnson's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Voir dire lasted most of the first day of Johnson's trial. The jury was seated at 3:15 in the afternoon, at which point the court took a recess to discuss preliminary instructions with counsel. During that recess, the parties and the court agreed that Johnson wanted to make an evidentiary stipulation and the court would inform the jury that Johnson had been adjudicated as a juvenile offender for an act that, if done by an adult, would constitute a felony. The court did not take a jury trial waiver from Johnson. The court reconvened the jury at 3:30 and gave the jury its preliminary instructions. Included was the following:

"[THE COURT:] As to element two, ladies and gentlemen, the parties have prepared a stipulation. A stipulation is simply an agreement among the parties that a certain fact is true and no other evidence needs to be given to prove it. The stipulation reads as follows: Comes now on this 27th day of October, 2014, the Defendant, Daquantrius S. Johnson, personally and by and through his attorney, Terry Beall, stipulate for the purposes of admission into evidence at the jury trial in the above-captioned case as follows: That the Defendant, Daquantrius John- son, was adjudicated a juvenile offender for an act which, if done by an adult, would constitute the commission of a felony in Sedgwick County District Court on July 2, 2012. He was not found to have been in possession of a firearm at the time of the prior crime and has not had the prior adjudication expunged or been pardoned for such crime. This adjudication prohibited him from owning and possessing a firearm on October 14, 2013. It's signed by the defendant, Mr. Johnson, by his attorney, Mr. Beall, and by Mr. Roush on behalf of the State."

Following this, both parties presented brief opening statements and the State began its case-in-chief by calling the victim, Randall Gifford, as its first witness. While examining Gifford, the State offered five exhibits into evidence—the trial judge admitted all the exhibits into evidence. Next, defense counsel cross-examined Gifford, drawing one relevance objection from the State. The

VOL. 310 SUPREME COURT OF KANSAS 911

State v. Johnson court promptly sustained the State's objection. After this, the court recessed for the day. The trial resumed the next day, and began with this announce- ment from the court:

"THE COURT: Good morning.

"THE JURY: Good morning.

"THE COURT: Ladies and gentlemen, I believe we're ready to get underway on this matter. Before we do that, though, there's something that I want to bring out and discuss, and that is earlier this morning one of the jury members pulled Christine aside and made the observation that during the course of the proceeding in the trial yesterday afternoon I may have been sleeping or nodding off, and the question was raised whether or not Mr. Johnson then could have a fair trial. Christine, I think, explained to the juror that raised that issue that you are the trier of facts and at the conclusion of the case you are the ones that decide all the factual issues and reach a determination as to whether or not Mr. Johnson is guilty or not guilty and whether or not the case has been proven, and that is a correct assessment of the matter.

"As I mentioned to you yesterday in my very preliminary instructions, the role of the judge and the jury are different. You are the trier of facts. I decide what evidence you will hear and what instructions you will receive. I don't believe during the course of this trial yesterday afternoon there were any objections raised that I had to make rulings on that would have been affected by my nodding off. I acknowledge myself, ladies and gentlemen, that I did nod off some. I doubt that I'm the first judge in America that's ever done that.

"And I want to also just observe the fact that I think I mentioned to you actually I graduated from law school in December of 1971, almost 43 years ago. I've probably been involved in as many as 300 jury trials, and over the course of my career I've learned and have gained a great deal of respect for our jury system. I recognize fully that many people—as I indicated in our informal discussions yesterday morning, many people when they get a jury summons the first reaction is, golly, why do I have to do this, and yet at the same time in my 43 years of experience most jurors I find are very conscientious about their role and their responsibility. They take their job seriously. And, quite honestly, I'm glad that this matter was brought out in the open so that it can be dealt with.

"In that regard, the defendant, of course, is the one who's affected and is the one who is entitled to have a fair trial. Obviously the State is entitled to have a fair trial also. It is a constitutional right for the defendant to be given a fair trial. So the question is whether or not the defendant now wants to make a motion for a mistrial based on this conduct. So, Mr. Beall, is it your wish to request a mistrial?

"MR. BEALL: Not at this time. We're ready to proceed.

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State v. Johnson

"THE COURT: Very well. With that then we'll proceed on. Mr. Roush, you may call your next witness.

"MS. HART: Your Honor, the State calls Kayla Wilson.

"THE COURT: And I'll try to do better."

The trial continued and the jury ultimately found Johnson guilty of all three crimes as charged. The court imposed a 43- month sentence, 12 months' postrelease supervision, and lifetime registration under K.S.A. 2013 Supp. 22-4905(b)(2). On appeal, Johnson raised many issues, most of which are not before us. Be- cause the panel reversed Johnson's conviction after holding that the trial judge had committed structural error, it did not address all of Johnson's remaining claims on appeal. The panel did, however, address whether a valid jury trial waiver must accompany John- son's stipulation to an element of one of the charged crimes, holding that such a waiver was unnecessary. See State v. Johnson, 53 Kan. App. 2d 734, 735-37, 742-45, 391 P.3d 711 (2017). These are the only two issues before us and we take them up in turn.

ANALYSIS

Structural Error

It is unclear whether Johnson or his counsel observed the trial judge nodding off during the afternoon of the first day of trial. But when the trial judge addressed the matter the next day, Johnson did not object to continuing with the trial or move for a mistrial when given the opportunity. Ordinarily, this lack of an objection could preclude our review of the issue. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (an argument ordinarily cannot be raised for the first time on appeal). The State has not made a preservation argument, however, and the Court of Appeals decided to consider the issue for the first time on appeal. Given that we review intermediate appellate court decisions to consider issues for the first time on appeal for an abuse of discretion, and given the State does not claim the Court of Appeals abused its discretion by reaching this issue, we will not disturb the lower court's implicit preservation holding. See State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017) (explaining that "preservation is a prudential rule, rather than a jurisdiction bar" and thus reviewing

VOL. 310 SUPREME COURT OF KANSAS 913

State v. Johnson a Court of Appeals decision to reach or not reach an unpreserved issue for abuse of discretion). When considering the merits, the Court of Appeals found no caselaw directly on point. In lieu of such precedent, a majority of the panel drew an analogy between the "nodding off" judge in Johnson's trial and a judge who is physically absent from the trial for some period of time. See Johnson, 53 Kan. App. 2d at 736-42. Because many instances of a physically absent judge have resulted in a finding of structural error, the majority ruled that "a sleeping judge does not and cannot preside over a trial" and cannot "supervise anything other than his or her dreams." 53 Kan. App. 2d at 738-39. Thus, the court ruled that "[o]bviously, this issue defies harmless error analysis." 53 Kan. App. 2d at 738. Judge Buser disagreed, however, stating that "[a] new structural error standard applied in these situations would be without precedent, unnecessary, and prone to abuse by defense counsel." 53 Kan. App. 2d at 757 (Buser, J., dissenting). Before us, Johnson reprises these arguments and maintains that the district court judge was not consciously present while nodding off. Therefore the absent judge rubric ought to apply—justifying a finding of structural error here. The State has never contested the finding of error or judicial misconduct. But at the Court of Appeals, the State argued that before judicial misconduct merits reversal, a defendant must show actual prejudice. And before us, the State appears to have shifted its position slightly, now arguing that the error is constitutionally harmless. Regardless of which reversibility test applies, the threshold question—whether structural error infected Johnson's trial—is a question of law over which we exercise plenary review. State v. Hill, 271 Kan. 929, 934, 26 P.3d 1267 (2001), abrogated on other grounds by State v. Voyles, 284 Kan. 239, 252-53, 160 P.3d 794 (2007). A structural error is one that is so pervasive it defies "analysis by 'harmless-error' standards." Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). These errors are "structural defects in the constitution of the trial mechanism," which affect the "entire conduct of the trial from beginning to end." 499 U.S. at 309-10. They prevent the trial court from serving its basic function of determining guilt or innocence and deprive

914 SUPREME COURT OF KANSAS VOL. 310

State v. Johnson defendants of the "basic protections" of a criminal trial. Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 [1986]). Such errors render the trial "'fundamentally unfair,'" requiring automatic reversal. Neder, 527 U.S. at 8 (quoting Rose, 478 U.S. at 577). So far, the United States Su- preme Court has identified "a very limited class of cases" involving structural errors, including: (1) total deprivation of counsel; (2) lack of an impartial trial judge; (3) denial of the right to self- representation at trial; (4) violation of the right to a public trial; (5) erroneous reasonable-doubt instruction; and (6) unlawful exclusion of members of the defendant's race from a grand jury. Neder, 527 U.S. at 8; United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010); Fulminante, 499 U.S. at 310. Notably, the Supreme Court has not included a judge nodding off (or even a physically absent judge) in its limited class of structural errors. And in Kansas, there is no precedent finding structural error on facts like those before us here. Similarly, there is no federal precedent finding structural error when a judge falls asleep during a criminal jury trial. See, e.g., United States v. White, 589 F.2d 1283, 1289 (5th Cir. 1979) (holding that the judge's falling asleep during defense counsel's opening argument was not prejudicial error). Even if we were to accept the panel's view that a physically absent judge is always structural error, we reject the way the lower court equated what happened during Johnson's trial with a physically absent judge. The record of the time-period in question does not suggest an absent judge—quite the opposite. The court did not read its preliminary jury instructions until 3:30 that afternoon. Af- ter the judge administered the lengthy preliminary instructions— 15 pages in the trial transcript—the court instructed the parties to give their opening statements. Following opening statements, the court asked the State to call its first witness. During the State's direct examination, the State offered five exhibits—all of which the trial judge admitted into evidence. When the State finished its direct examination, the judge called

VOL. 310 SUPREME COURT OF KANSAS 915

State v. Johnson upon Johnson to cross-examine the witness. During that cross-examination, the State lodged one objection. The court promptly sustained the objection. After the judge sustained the objection, the defense ended its cross-examination and the judge asked the State for any redirect. The State conducted a brief redirect, and the court recessed for the day. So while the trial transcript contains no notation of when, precisely, the judge was nodding off, it also does not show any lapses of judicial oversight during the window of time in question. Given this, it is not reasonable to equate the trial judge's nodding off to the facts of the cases relied on by the panel—all involving a judge who physically left the bench. See Gomez v. United States, 490 U.S. 858, 876, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989) (holding structural error occurred when a magistrate judge presided over jury selection); Fiechter v. Fiechter, 97 Kan. 166, 167, 155 P. 42 (1916) (ruling "it ought not to require very much of a showing of prejudice to authorize a new trial" in a civil jury trial where the judge had the clerk preside over arguments); State v. Beuerman, 59 Kan. 586, 591, 53 P. 874 (1898) (stating in dictum the trial judge leaving the bench during trial and going into an adjoining room was improper because "there can be no court without a judge, and he cannot even temporarily relinquish control of the court"); United States v. Mortimer, 161 F.3d 240, 241-42 (3d Cir. 1998) (holding structural error occurred where a prosecutor tried to make an objection, but the judge had disappeared from the bench); Peri v. State, 426 So. 2d 1021, 1027 (Fla. Dist. Ct. App. 1983) (holding it was unworkable to require a showing of prejudice when a trial judge was absent during part of the trial because it would not deter judges from that behavior); People v. Vargas, 174 Ill. 2d 355, 367, 370-71, 673 N.E.2d 1037 (1996) (holding it was per se reversible error when a judge left the bench during cross-examination of a witness). Even in circumstances of actual judicial absence, some courts have refused to apply structural error. See United States v. Love, 134 F.3d 595, 605 (4th Cir. 1998) (holding that the trial judge's absence during portions of closing arguments was not structural error that was reversible per se); Heflin v. United States, 125 F.2d 700, 700-01 (5th Cir. 1942) (holding no reversible error occurred

916 SUPREME COURT OF KANSAS VOL. 310

State v. Johnson when the trial judge left the bench for two or three minutes during closing argument); People v. Garcia, 826 P.2d 1259, 1266 (Colo. 1992) (holding that the trial judge leaving the court room while videotaped evidence was played to the jury was not reversible error); People v. Sheley, 90 N.E.3d 493, 497 (Ill. App. Ct. 2017) (holding a trial judge falling asleep does not constitute per se reversible error); State v. Scott, 284 Neb. 703, 723, 824 N.W.2d 668 (2012) (disapproving of the trial judge leaving the courtroom during testimony but holding the defendant did not establish prejudice for reversal); Coddington v. State, 254 P.3d 684, 699-700 (Okla. Crim. App. 2011) (holding that a judge's absence during videotaped testimony does not automatically create structural error); State v. Arguello, 873 N.W.2d 490, 493-94 (S.D. 2015) (holding that the trial judge leaving the courtroom while the jury watched evidentiary videos did not rise to the level of structural error). This case does not present us with facts indicating a judge who slipped into any of the deeper phases of sleep. There is no sugges- tion the trial judge was actually engaged in a full-blown nap on the bench. Certainly a dozing, heavy-lidded, or nodding judge who is struggling to remain awake and alert is no more acceptable or proper than someone in the same state attempting to operate an automobile. Indeed, the State has conceded error or misconduct here, and we have no reason to question that concession. Just like a driver who feels the overwhelming physical need for sleep should immediately get off the road, a responsible judge charged with overseeing a criminal trial who feels the need for sleep, and can no longer successfully put it off, has a responsibility to call a halt to the proceedings. But just as not every dozing driver causes an accident, not every instance of a dozing judge must lead to an automatic reversal. Unlike a judge who is physically absent from the courtroom, a judge who is fighting to stay awake may still be able to control and respond to events happening in the courtroom. Kryger et al., Principles and Practice of Sleep Medicine 19 (5th ed. 2011) (supporting the view that "sensory processing at some level does continue after the onset of sleep"). This situation is more akin to a judge who—like any human being—succumbs to a distraction.

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State v. Johnson

Though less than ideal, distractions happen often on the bench— whether it's conducting legal research on the matters before the court or fact checking the record during a proceeding, they are almost inevitable. We decline to establish a bright-line rule suggesting that anytime a judge misses some courtroom event or word the judge is effectively absent. In the case before us, while the inat- tention appears significant and serious, it was not so significant or serious to either show up in the transcript or generate objections from the parties. We cannot say the district court judge so abdi- cated and abandoned his judicial responsibilities that he was effectively absent from the courtroom. As a result, Johnson's trial did not suffer from structural error. Having determined that there was no structural error, we are left to consider the proper framework for the remaining reversibility analysis that must follow conceded error or misconduct. We have recently clarified that the party bearing the burden of proving prejudice—or lack thereof—depends on whether the failure below is classified as "judicial misconduct" or "judicial comment error." State v. Boothby, 310 Kan. 619, 626, 448 P.3d 416 (2019). In Boothby, the defendant complained of the trial judge's improper comment during voir dire. There, we held that we will review allegedly inappropriate comments by a trial judge as "judicial comment error" under our Chapman/Ward constitutional harmlessness test. 310 Kan. at 628-29; see State v. Ward, 292 Kan. 541, 561, 569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]). We distinguished the reversibility analysis for "judicial comment error" from our more traditional "judicial misconduct" reversibility standard, which puts the burden on the party alleging error to show prejudice. We found that erroneous remarks in the form of "judicial comment error" resemble prosecutorial error. Thus, the "logic behind Sherman's 'error and prejudice' rubric for prosecutorial error applies with equal force to judicial comment error." Boothby, 310 Kan. at 627. We expressly reserved, however, the category of "judicial misconduct" for "any judicial error that implicates the right to a fair trial and does not concern a jury instruction or legal ruling." Boothby, 310 Kan. at 626. Because Johnson does not complain of

918 SUPREME COURT OF KANSAS VOL. 310

State v. Johnson any remarks made by the trial judge, this case fits into our generic "judicial misconduct" category. So, Johnson must demonstrate that the misconduct prejudiced his substantial rights. See Boothby, 310 Kan. at 625 (citing State v. Miller, 308 Kan. 1119, 1154, 427 P.3d 907 [2018]). But because the Court of Appeals has yet to consider whether Johnson has met this burden, we remand this issue for the panel to examine and rule upon in the first instances. See Miller, 308 Kan. at 1154. The analysis must include a consideration of the overall strength of the evidence against Johnson and the impact of any curative steps taken by the trial judge to purge the taint of the misconduct. See State v. Gaither, 283 Kan. 671, 684, 156 P.3d 602 (2007) (finding judge's apology and offer to excuse offended prospective jurors "purged the taint of the misconduct").

Jury Trial Waiver

Next, Johnson argues the Court of Appeals erred in holding the district court was not required to obtain a jury trial waiver before accepting his stipulation to an element of one of the crimes charged. Whether Johnson's stipulation constituted a knowing and voluntary waiver of his right to a jury trial on this element is a question of law subject to unlimited appellate review. State v. Rizo, 304 Kan. 974, 979, 377 P.3d 419 (2016) (quoting State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012) ("'But when the facts of the district court's determination to accept a jury trial waiver are not disputed, the question whether the defendant voluntarily and knowingly waived the jury trial right is a legal inquiry subject to unlimited appellate review.'"). The State suggests the stipulation by itself was not tantamount to a guilty plea and did not require a jury trial waiver at all. We disagree. The Fifth and Sixth Amendments to the United States Constitution "entitle [] criminal defendant[s] to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jer- sey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (citing United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 [1995]). And when a defendant stipulates to an element of a crime, the defendant has effectively given

VOL. 310 SUPREME COURT OF KANSAS 919

State v. Johnson up his or her right to a jury trial on that element. United States v. Smith, 472 F.3d 752, 753 (10th Cir. 2006) (quoting United States v. Mason, 85 F.3d 471, 472 [10th Cir. 1996]). We have consistently held that jury trial waivers "should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury." See, e.g., Beaman, 295 Kan. at 858. And because every defendant has the fundamental right to a jury trial, courts cannot accept a jury trial waiver "'unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.'" State v. Irving, 216 Kan. 588, 589-90, 533 P.2d 1225 (1975) (noting that a waiver will not be presumed from a silent record). In sum, the district court judge's admitted sleeping was misconduct but did not rise to the level of structural error. But the district court did err when it accepted Johnson's elemental stipulation without first obtaining a knowing and voluntary jury trial waiver on the record. Therefore, we remand Johnson's appeal to the Court of Appeals for further consideration of all issues John- son raised on appeal in light of our decision today.

Reversed and remanded with directions.

1 JOHNSON, J., not participating.

1REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not participate in the final decision in case No. 113,228. Justice Johnson retired effective September 6, 2019.

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State v. Bryant

No. 118,848

STATE OF KANSAS, Appellee, v. TIMOTHY C. BRYANT, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Challenge to Legality of Sentence—Judged When Sen- tence Pronounced. The legality of a sentence challenged through a motion to correct illegal sentence is judged as of the time the sentence was pronounced. Subsequent changes in the law do not render a legal sentence illegal.

2. SAME—Motion to Correct Illegal Sentence Not a Challenge to Constitu- tionality of Sentence. A motion to correct illegal sentence is an inappropriate vehicle for challenging the constitutionality of a sentence.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opin- ion filed November 27, 2019. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the briefs for appellant.

Thomas C. Penland, assistant district attorney, Mark A. Dupree, Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This case concerns Timothy Bryant's motion to correct an illegal sentence. Because none of Bryant's attacks on his sentence have merit, we affirm the district court judge's decision to deny Bryant's motion.

FACTUAL AND PROCEDURAL BACKGROUND

A Wyandotte County jury convicted Bryant in August 2005 of first-degree murder and aggravated robbery. The district judge found that Bryant's criminal history score was "A" because of five prior person felonies. Three of these person felonies were 1981 Missouri convictions for second-degree burglary. Based on Bry- ant's criminal history score, the district judge sentenced Bryant to life in prison for first-degree murder and a consecutive 233 months for aggravated robbery. In June 2014, Bryant filed the motion underlying this appeal. He argued unsuccessfully that his sentence was illegal under State

VOL. 310 SUPREME COURT OF KANSAS 921

State v. Bryant v. Murdock, 299 Kan. 312, 313, 323 P.3d 846 (2014) (Murdock I), which was overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), the following year. Before this court, Bryant argues that his sentence is illegal under State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). Specifi- cally, he challenges the classification of his three 1981 Missouri second-degree burglaries as person crimes.

DISCUSSION

Under K.S.A. 22-3504, a defendant may move to correct an illegal sentence at any time while the defendant is serving that sentence. See K.S.A. 2018 Supp. 22-3504(1); L. 2019, ch. 59, § 15. A sentence is illegal if it (1) is imposed by a court lacking jurisdiction, (2) fails to conform to the applicable statutory provisions, or (3) is ambiguous with respect to the time and manner in which it is to be served. State v. Campbell, 307 Kan. 130, 133, 407 P.3d 240 (2017). Bryant argues that his sentence is illegal because it fails to conform to applicable law. Whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). Classification of a defendant's prior crimes to determine his or her criminal history score involves interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq., which is a question of law over which this court has unlimited review. Wetrich, 307 Kan. at 555. Bryant's first argument is not that his sentence was illegal at the time it was imposed. Rather, he argues that subsequent changes in the law have rendered his sentence illegal. The illegal sentence statute itself and recent decisions from this court fore- close his challenge. In April 2019, this court decided State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) (Murdock II), where we held:

"[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time—the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law."

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State v. Bryant

The next month, our Legislature echoed the Murdock II holding by amending the illegal sentence statute, K.S.A. 2018 Supp. 22-3504(3), to read:

"(1) 'Illegal sentence' means a sentence: Imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced. "(2) 'Change in the law' means a statutory change or an opinion by an appellate court of the state of Kansas, unless the opinion is issued while the sentence is pending an appeal from the judgment of conviction." L. 2019, ch. 59, § 15.

Our Legislature stated that these amendments were "procedural in nature" and "shall be construed and applied retroactively." L. 2019, ch. 59, § 15. The amendment went into effect on May 23, 2019. This court made the next relevant move, deciding in State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019), that "Wetrich was a change in the law as contemplated by Murdock II" and therefore inapplicable to sentences finalized before Wetrich was decided. Weber, 309 Kan. at 1209. The Weber holding dooms Bryant's Wetrich argument. Bryant also argues that his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013); and Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016). He asserts the district judge unconstitutionally engaged in fact-finding when he designated Bryant's 1981 Missouri second-degree burglaries as person felonies. This court has often reiterated that "the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision." State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016) (Dickey II) (quoting State v. Moncla, 301 Kan. 549, 553-54, 343 P.3d 1161 [2015]). Under this rule, Bryant cannot use a motion to correct an illegal sentence to argue that his sentence is unconstitutional. Dickey II, 305 Kan. at 220.

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State v. Bryant

Bryant failed to establish that his sentence was illegal at the time it was imposed. He also cannot use a motion to correct an illegal sentence to raise his constitutional arguments. The district judge was correct to deny Bryant's motion to correct an illegal sentence.

We affirm.

1 MICHAEL J. MALONE, District Judge Retired, assigned.

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 118,848 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

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State v. Claerhout

No. 115,227

STATE OF KANSAS, Appellee, v. JEREMY CLAERHOUT, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Driving While Intoxicated—Prior Diversion for DUI Rel- evant. Evidence of a prior diversion agreement for driving while intoxicated may be relevant to establishing that a defendant was on notice that driving while intoxicated is dangerous.

2. APPEAL AND ERROR—Admissibility of Evidence—Appellate Review. The admissibility of evidence under K.S.A. 60-455 is subject to harmless error analysis on appeal.

3. TRIAL—Expert Witness—Qualifications. It is not necessary that an expert witness demonstrate expertise in every theory, principle, or scientific discipline underlying the knowledge, skill, experience, training, or education that may qualify an expert witness to give testimony.

4. CRIMINAL LAW—Reckless Second-Degree Murder—Voluntary Intoxi- cation Not a Defense. Voluntary intoxication is not a defense to reckless second-degree murder.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 742, 406 P.3d 380 (2017). Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed December 6, 2019. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Kendall S. Kaut, assistant district attorney, argued the cause, and Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Driving while intoxicated, Jeremy M. Claerhout caused the death of another driver in a rear-end collision. He was convicted of reckless driving and second- degree murder for unintentional but reckless homicide. A divided panel of the Court of Appeals affirmed the conviction, and this court granted review on all issues for which review was sought. The facts underlying the legal issues in this case are essentially undisputed.

VOL. 310 SUPREME COURT OF KANSAS 925

State v. Claerhout

FACTS

On the afternoon and evening of January 11, 2015, Claerhout and two friends visited several bars in Olathe, Kansas. All three men consumed beers and cocktails at each of the bars, and, based on his own recollections and the testimony of bartenders, it is estimated that Claerhout consumed approximately five 12-ounce beers, four 24-ounce beers, one 32-ounce beer, and one or two vodka cocktails that afternoon and evening. After about an hour at the third bar, the three men got into Claerhout's black Ford F-150 pickup truck and headed back toward a bar they had visited earlier. Claerhout was driving. A short time later, a witness standing outside her place of employment saw a white car drive by; a few seconds later she saw a black Ford truck go by at a high rate of speed, its engine revving and the tires spraying water in the rain. Ten to 15 seconds afterwards, she heard a loud impact sound, which prompted her to call 911. Another witness, who was stopped at an intersection, saw a white Mazda propelled past the intersection at approximately 90 miles per hour out onto the right side of the grassy shoulder, hit and break a cable pole, proceed at least another 100 yards, and come to a stop upon colliding with an iron fence on the other side of the street. She saw a black pickup truck approaching from behind and at the same speed as the Mazda; it then slowed to a stop. She also called 911. Police and paramedics found the Mazda smashed into a wrought iron fence. The driver was wearing his seatbelt, and the airbags had deployed. The driver's seat was broken off its track and had slid backwards, and the driver was unconscious, on the dashboard and facing the roof. The front of the truck was damaged, and a piece from the rear end of the Mazda was stuck in the front end of the truck. The three occupants of the truck all told police that they did not know what had happened. Claerhout had bloodshot, watery eyes and the odor of alcohol on his breath, and he was slurring his words. He was smoking a freshly lit cigarette, which officers asked him to extinguish. He put out the cigarette but then lit another one and continued to smoke it after being asked to put it out. He said he had no idea what happened. Police performed walk-and-turn and one-leg-

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State v. Claerhout stand field sobriety tests on him, which he failed. He was arrested and taken to a police station, where an Intoxilyzer 8000 breath test was administered at 11:30 that night. The breath sample indicated a blood alcohol content of .211, more than twice the legal limit of .08. The accident took place in a mixed residential and office area where the speed limit was 40 miles per hour. Based on tracks on the grass and the roadway as well as damage to objects along the way, Officer John Moncayo reconstructed what happened before and after the collision. There was no braking by either vehicle before the collision. The truck struck the Mazda at a slight angle on the rear passenger side, propelling the Mazda onto the grass, where it struck and sheared off a medium-sized tree at its base. The car continued forward and struck a utility pole, breaking it in half and leaving the top half of the pole suspended by the cable line. The car then swerved back onto the road, crossed the center line, struck the curb, went over a small hill, and stopped when it struck a wrought iron fence. In all, the Mazda traveled some 848 feet after the impact. The driver, Christopher Willdermood, was taken to a nearby hospital, where imaging showed significant bleeding in the back of his brain. He was declared brain-dead on February 14, 2015. Blood analyses showed no signs of narcotics or alcohol in his body. The cause of death was listed as complications from a blunt injury to the head. The State charged Claerhout with second-degree murder for unintentional but reckless homicide or, in the alternative, involuntary manslaughter while driving under the influence of alcohol, and an additional count of reckless driving. The defense theory at trial was that Claerhout was highly intoxicated and incapable of safely driving at the time of the accident, and he therefore was guilty of involuntary manslaughter but not guilty of second-degree murder. The jury entered a verdict of guilty on the count of second- degree murder, guilty on the count of involuntary manslaughter while driving under the influence of alcohol, and guilty of the count of reckless driving. Because the jury found Claerhout guilty of both alternative homicide charges, the trial court vacated the

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State v. Claerhout conviction on the count of involuntary manslaughter while driving under the influence. The court sentenced him to a standard term of 117 months for second-degree murder and a concurrent 30-day sentence for reckless driving. A panel of the Court of Appeals affirmed the conviction, with one judge dissenting. State v. Claerhout, 54 Kan. App. 2d 742, 406 P.3d 380 (2017) This court granted review on all issues raised in the petition for review.

ANALYSIS

Evidence of Prior Diversion Agreement

In 2010, Claerhout entered into a diversion agreement subsequent to an arrest for driving while intoxicated. According to the statements of counsel at a motion to suppress, the arrest was made after a stop for a missing tail light; there was no indication of dangerous driving and no accident was involved. At trial, the State was allowed to introduce the diversion agreement, without explanation, for the purpose under K.S.A. 2016 Supp. 60-455(b) of proving knowledge that driving while intoxicated is dangerous. Claerhout argues that this evidence should not have been introduced at all, and the manner in which it was introduced defeated the statutory basis for admitting it. K.S.A. 2018 Supp. 60-455(a) makes evidence of a prior crime or civil wrong inadmissible for the purpose of proving a disposition to commit such an act on another occasion. K.S.A. 2018 Supp. 60-455(b) allows such evidence of a prior crime or civil wrong when it is "relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." When the State seeks to introduce evidence of prior bad conduct under K.S.A. 60-455, that evidence must be material, and its probative value must outweigh its potential for producing undue prejudice. State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). Whether such evidence is material—meaning that the evidence has some real bearing on the decision in the case—is reviewed independently, without deference to the district court. Whether the evidence is relevant to prove a disputed material fact is reviewed only for abuse of discretion. Whether the probative value of the

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State v. Claerhout evidence outweighs the potential for undue prejudice against the defendant is also reviewed only for abuse of discretion. State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018). A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019). The jury found Claerhout guilty of both reckless second-degree murder and involuntary manslaughter. Claerhout contends the diversion agreement was improperly introduced in order to prove recklessness and, without it, the jury might have convicted him of only the involuntary manslaughter charge. K.S.A. 2018 Supp. 21-5403(a)(2) defines reckless second-degree murder as the killing of a human being committed "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." This crime is a severity level 2 person felony. K.S.A. 2018 Supp. 21-5403(b)(2). Advocating outside the presence of the jury for admitting the diversion agreement, the prosecutor stated the purpose of the diversion evidence was to prove to the jury that Claerhout had been educated to the reality that driving while intoxicated was dangerous and his decision to drive while intoxicated was therefore reckless. The court agreed with the State's basis for admitting the evidence, stating that the diversion agreement would demonstrate that Claerhout "should be on notice as to what the problems of drinking and driving are based upon his prior experience." The Court of Appeals agreed, holding that the diversion agreement was relevant to show Claerhout's heightened knowledge of the risks of driving under the influence. 54 Kan. App. 2d at 750-51. The Tenth Circuit Court of Appeals has considered a similar question and agreed that evidence of prior drunk driving is admissible as tending to show knowledge of the dangers of driving while intoxicated:

"A jury could infer from Defendant's prior drunk driving convictions that he is especially aware of the problems and risks associated with drunk driving.

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State v. Claerhout

We agree that '[o]ne who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others.'" United States v. Tan, 254 F.3d 1204, 1210 (10th Cir. 2001) (quoting People v. Brogna, 202 Cal. App. 3d 700, 709, 248 Cal. Rptr. 761 (1988).

Many courts have cited to Tan as support for admitting evidence of prior convictions for driving while intoxicated. See, e.g., United States v. New, 491 F.3d 369, 374-75 (8th Cir. 2007) (while evidence of prior crimes is not admissible to prove bad character or propensity to commit bad acts, it may be admissible to prove requisite knowledge); United States v. Norris, 649 F. Supp. 2d 968, 969-70 (D. Ariz. 2009) (evidence showing defendant previously convicted of driving under the influence admissible to prove malice), United States v. Miller, No. 13-CR-1867 WJ, 2014 WL 12796762 (D. N. Mex. 2014) (unpublished opinion); State v. St. Clair, 101 Haw. 280, 288, 67 P.3d 779 (2003) (evidence showing defendant involved in automobile accident while driving intoxicated less than four years before charged accident involving pedestrian death was relevant in manslaughter prosecution to prove defendant acted recklessly when driving after consuming at least 12 beers); Commonwealth v. Diehl, 2016 Pa. Super. 93, 140 A.3d 34, 40 (2016) (evidence of defendant's prior DUI convictions and alcohol awareness classes was admissible to establish mens rea in vehicular homicide case premised on DUI accident). See also United States v. Loera, 923 F.2d 725, 729 (9th Cir. 1991) (prior convictions admitted to prove malice); United States v. Fleming, 739 F.2d 945, 949 (4th Cir. 1984) ("[T]he driving record was relevant to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others."). We agree with our Court of Appeals and with courts in other jurisdictions. And while a diversion for driving under the influence is not a conviction, the statutory requirements and specific details outlined in the agreement essentially serve the same purpose in showing its relevance. (See generally K.S.A. 2018 Supp. 8-1567[i][1] and [i][6].) Even if it was never demonstrated what the content of the required instruction mandated by the diversion agreement was, or even whether he actually attended the educa-

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State v. Claerhout tional programs, by agreeing to and signing the agreement Claer- hout acknowledged an understanding that driving while intoxicated is a dangerous and illegal activity. The jury reasonably could have concluded from the diversion agreement that Claerhout was on notice that driving while intoxicated is risky behavior, and his decision to engage in that behavior demonstrated reckless conduct. This is not the end of the analysis, however. Claerhout argues that, even if the diversion agreement had some probative value, that value was outweighed by its prejudicial effect. This court has established safeguards limiting the introduction of K.S.A. 60-455 evidence: The material fact that the evidence is introduced to prove must be disputed, and the probative value of the evidence must outweigh its potential for producing undue prejudice. Boysaw, 309 Kan. at 539. The district court in the present case conducted a generalized, superficial weighing of the probative value of the evidence against the potential for undue prejudice, making the conclusory determination that "the probative value of the evidence outweighs its prejudicial effect." Recognizing the risks that inhere in admitting evidence of other crimes or previous bad conduct, we recently articulated an analytic framework for district courts to apply before exposing jurors to such potentially prejudicial evidence:

"In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct." Boysaw, 309 Kan. at 541.

In the present case, the district court's stated reasoning was so abbreviated that we cannot determine what factors, if any, it considered in reaching its conclusion that the probative value outweighed the potential prejudicial effect. To be sure, the Boysaw factors are not exclusive or all-encompassing, but the district court

VOL. 310 SUPREME COURT OF KANSAS 931

State v. Claerhout skirted carrying out its duty to protect a defendant from undue prejudice. We need not at this time decide how little or how much analysis a district court must display to satisfy the Boysaw due process mandates. Reversible error does not necessarily result from failing to weigh various factors on the record. We have recognized an implicit determination by a district court that the probative value of K.S.A. 60-455 evidence outweighs the risk of undue prejudice when the court stated that it had reviewed other caselaw for guidance in carrying out such a weighing procedure. State v. Remmert, 298 Kan. 621, 628, 316 P.3d 154 (2014), disapproved on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). Alt- hough the district court in the present case did not state on the record as much analysis as did the Remmert district court, we hold that any deficiency in the analysis was harmless. Admission of evidence under K.S.A. 60-455 is subject to harmless error analysis. See, e.g., Gunby, 282 Kan. at 59. Here, the evidence was introduced for the stated purpose of tending to show that Claerhout was aware that driving while intoxicated is dangerous. Claerhout contends that the risk of prejudice is that the jury might instead view the diversion agreement as evidence that he had a propensity to drive while intoxicated, thus suggesting that, even in the absence of evidence of actual intoxication in the present case, the jury would assume he was intoxicated or punish him for his prior offense. That risk of undue prejudice is minimal here. The evidence that he was intoxicated was substantial and uncontroverted; Claer- hout conceded intoxication in his opening and closing arguments. He further conceded that he was driving at a speed far in excess of the legal limit and that his driving caused the death of the victim. Furthermore, the district court gave the jury a limiting instruction:

"Evidence has been admitted tending to show that the defendant committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of determining whether or not the defendant acted with extreme indifference to the value of human life as alleged in Count I."

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State v. Claerhout

This limiting instruction is required as a prophylactic to guard against the danger that the jury will view K.S.A. 60-455 evidence as tending to show propensity. See Gunby, 282 Kan. 39, Syl. ¶ 3; State v. Wilkerson, 278 Kan. 147, 153, 91 P.3d 1181 (2004). If such an instruction did not provide some protection against the harm of which Claerhout complains, it would be nothing more than a superfluous requirement. We continue to encourage district courts to state on the record the factors considered in weighing the admissibility of K.S.A. 60- 455 evidence. We disagree with the Court of Appeals panel majority when it stated that the district court was not required to explicitly weigh factors used in determining that the probative value of the evidence outweighed its prejudicial effect because the same risk that the jury would be inclined to view the diversion agreement as propensity evidence arises every time K.S.A. 60-455 evidence is admitted. Claerhout, 54 Kan. App. 2d at 754. Not all evidence is equally prejudicial, just as not all evidence is equally probative. We nevertheless find any deficiencies in the district court's reasoning to be harmless.

Police Officer's Testimony About Vehicle Speeds

Over Claerhout's pretrial motion to exclude and over a continuing objection at trial, Officer Matt Misemer testified to crash data retrieval reports he generated from data stored in both the truck's and the car's airbag control modules. Misemer testified about his training in investigation and reconstruction, including the ability to analyze crash data retrieval download information. He concluded with an evaluation of the relative speeds of the two vehicles at the time of the collision. Claerhout argues on appeal that Misemer was not qualified to testify about scientific and mathematical conclusions. The admission of expert testimony lies within the discretion of the district court and will not be reversed without a showing that the court abused its discretion. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). Misemer testified about the relative speeds of the two vehicles at the time of the collision. He testified that the airbag control

VOL. 310 SUPREME COURT OF KANSAS 933

State v. Claerhout module records such information as vehicle speed, braking, throttle, and engine rotation and retains that information for five seconds. He explained that he used software that connected to the modules and that translated the raw data into usable information, such as vehicle speed. His report on the data processing results showed that the truck was moving 86 miles per hour five seconds before impact and had accelerated to 92 miles per hour at the time of impact. The results showed that the truck was being driven at full throttle during that time; it could not accelerate any faster. Both the module data and the absence of skid marks showed that the brakes of the truck were not applied during the five seconds before contact. Misemer next testified about the results downloaded from the Mazda. The data contained information about the five seconds before the car struck the tree, triggering the airbag. Earlier information, specifically at the moment of impact with the truck, was not preserved within the five-second loop. Five seconds before the car struck the tree, it was traveling 62 miles per hour, and it slowed to 47 miles per hour by the time of impact with the tree. Misemer entered this information, along with the data from the truck and the weight of the respective vehicles, into a formula to calculate the speed of the Mazda when the truck ran into it. He calculated that the Mazda was traveling at 47 miles per hour, plus or minus five percent, at the moment of the collision with the truck. Claerhout did not cross-examine Misemer, and he offered no evidence to rebut Misemer's testimony. K.S.A. 2018 Supp. 60-456(b) governs whether an expert witness is qualified to testify:

"If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case."

Claerhout challenges Misemer's expertise to testify about the scientific basis for reaching his conclusions about the velocities and acceleration or deceleration rates of the vehicles. Misemer

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State v. Claerhout conceded at a motion to suppress hearing that he did not understand the laws of physics on which the software platforms were based. On the other hand, Misemer presented considerable evidence that he was experienced and qualified to utilize the software and to understand the data that it provided him. Claerhout would have this court adopt a requirement that ex- perts be able to demonstrate their expertise from the ground up. For example, Claerhout challenged Misemer to show that he would be able to teach a college physics class and explain the difference between Newtonian and Einsteinian laws governing mass and momentum. Claerhout's challenge would seem to require that an expert who presents testimony on what he or she has seen through a mi- croscope must also be able to explain the optical qualities of mi- croscopes, or that an expert on reading radiograms should be able to explain the high-energy physics of x-ray generation. We disagree that expertise in an area must extend to the theories and principles underlying the discipline that is the subject of the expert's testimony. This court has not previously ruled on the degree to which an expert must be able to demonstrate knowledge of the principles underlying the expert's expertise. The statute states with simple clarity that "knowledge, skill, experience, training or education" are the prerequisite qualifications for serving as an expert witness. The statute does not require that training or experience must be so thorough that the expert understands the physics or chemistry underlying the training or experience. As one federal district court stated: "We do not practice science in court and we do not insist that our expert witnesses do either." Mercado v. Ahmed, 756 F. Supp. 1097, 1101 (N.D. Ill. 1991). Discussing a statute similar to our Kansas rule for admitting expert witnesses, the Georgia Court of Appeals explained:

"The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. It is the possession of special knowledge derived either from experience, study, or both

VOL. 310 SUPREME COURT OF KANSAS 935

State v. Claerhout in a field of expertise that makes one an 'expert.' [Citations omitted.]" In the In- terest of C.W.D., 232 Ga. App. 200, 206, 501 S.E.2d 232 (1998).

Misemer testified to his training, proficiency testing, and extensive experience in accident reconstruction and using crash data retrieval. He demonstrated a special knowledge that would be helpful to the trier of facts. This background sufficed to meet the statutory requirements for qualification as an expert witness. Claerhout did not challenge the reliability of the hardware in the vehicles at measuring data or of the software used in processing the data. The results to which Misemer testified were consistent with other evidence admitted at trial. Eyewitness Megan Kliethermes testified she thought Claerhout was driving 90 miles per hour just before the collision and the victim was not driving that fast. Eyewitness Hilda Avila testified that there was nothing unusual or contributory in the manner the victim was driving; his car drove past her "like any other vehicle would drive by." Misemer's analysis of the electronic data provided simply confirmed the visual impressions of those witnesses. We find nothing in the record that undermines either Misemer's expertise in reading crash data retrieval or the reliability of his testimony. Accordingly, we find no error.

Voluntary Intoxication Instruction

Claerhout sought to assert a voluntary intoxication defense against the charge of reckless second-degree murder, contending that his intoxication rendered it impossible for him to have a reckless state of mind. The district court denied his requested instruction, and the Court of Appeals affirmed. 54 Kan. App. 2d at 762- 63. He argues that the defense refutes the element of a reckless state of mind. This court follows a four-step progression when reviewing challenges to jury instructions: First, it considers the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, it applies unlimited review to determine whether the instruction was legally appropriate; then, it determines whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and

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State v. Claerhout finally, if the district court erred, this court determines whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). State v. Murrin, 309 Kan. 385, 391, 435 P.3d 1126 (2019). We limit our analysis here to the question of whether, under the uncontested facts of this case, the requested instruction was factually appropriate. Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if the evidence suffices for a rational factfinder to find for the defendant on that theory. If that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. This court examines jury instructions as a whole, without focusing on any single instruction, to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury. Murrin, 309 Kan. at 391-92. It is counterintuitive to posit that an individual can be so drunk that he or she is incapable of engaging in reckless conduct. The statutory definition of reckless second-degree murder involves a killing committed "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." (Emphasis added.) K.S.A. 2018 Supp. 21-5403(a)(2). The qualifying words suggest an objective element of the crime: the circumstances show whether the behavior was reckless. If the circumstances manifest extreme indifference to the value of human life, the offense was committed recklessly. The uncontested evidence showed that Claerhout got into his truck, started it, drove down a roadway, decided to accelerate to 90 miles per hour, conversed with the two passengers, stopped his truck when he realized that he had hit something, and lit and smoked cigarettes when interviewed by police. We conclude that the mental capability to engage in and carry out those activities demonstrated the minimal sufficient mental capacity to engage in reckless conduct. Had he been so extremely intoxicated that he lost the capacity to consciously disregard a risk of harming others, he also would have lost the capacity to consciously operate a vehicle in this fashion and converse with others.

VOL. 310 SUPREME COURT OF KANSAS 937

State v. Claerhout

In Murrin, this court quoted from LaFave on Substantive Crimi- nal Law. 309 Kan. at 394. LaFave suggests that the degree of consciousness required for recklessness is quite low, perhaps even as low as the degree of consciousness required to put a key in a truck's ignition:

"'Recklessness' in causing a result exists when one is aware that his conduct might cause the result, though it is not substantially certain to happen. One may act recklessly if he drives fast through a thickly settled district though his chances of hitting anyone are far less than 90%, or even 50%. Indeed, if there is no social utility in doing what he is doing, one might be reckless though the chances of harm are something less than 1%. Thus, while 'knowledge' and the knowing-type of 'intention' require a consciousness of almost-certainly, recklessness requires a consciousness of something far less than certainty or even probability." 1 LaFave, Substantive Criminal Law §5.4(f) (3d ed. 2018).

Another treatise explains that courts have historically declined to give a voluntary intoxication instruction for crimes based on recklessness:

"The mental state of 'recklessness' ordinarily requires that the defendant be aware of and disregard a substantial risk that a particular harm will occur. If the crime charged requires recklessness, intoxication is ordinarily not a defense. The intoxication may be so extreme as to prevent the defendant from being aware of the pertinent risk. Nevertheless, it is commonly provided that if the defendant, as a result of voluntary intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial. The supportive theory is that there is enough 'recklessness' involved in voluntarily becoming grossly intoxicated—given the general understanding in our culture that extreme intoxication lessens inhibitions, provides an outlet for aggressive tendencies, and blunts perception and judgment—to warrant criminal liability." 2 Wharton's Criminal Law §111 (15th ed. 2019).

Consistent with Wharton's view, courts have allowed the prosecution to introduce evidence of voluntary intoxication to prove recklessness, which is the contrary of Claerhout's position that intoxication should be considered a defense to recklessness. State v. Jones, 283 Kan. 186, 209, 151 P.3d 22 (2007) (evidence of voluntary intoxication alone is not enough to warrant instruction on reckless second-degree murder), disapproved on other grounds by State v. Nelson, 291 Kan. 475, 243 P.3d 343 (2010); State v. Dren- nan, 278 Kan. 704, 715, 101 P.3d 1218 (2004) (intoxication can eliminate intent to kill but may not supply by itself extreme recklessness element of unintentional second-degree murder); see also

938 SUPREME COURT OF KANSAS VOL. 310

State v. Claerhout

People v. Miller, 75 Ill. App. 3d 775, 777-78, 394 N.E.2d 783 (1979) (evidence of intoxication is admissible to prove recklessness in prosecution for reckless homicide); Commonwealth v. Cobb, 399 Mass. 191, 503 N.E.2d 945 (1987) (reduction of conviction to manslaughter not abuse of discretion when evidence suffice to support finding that, due to intoxication, defendant acted in reckless fashion); People v. Colonna, 147 A.D.2d 582, 537 N.Y.S.2d 877 (1989) (defendant contended he could not have acted recklessly in killing victim; court disagreed, holding voluntary intoxication does not negate element of recklessness necessary to sustain conviction of second-degree manslaughter); People v. Vasquez, 104 A.D.2d 429, 478 N.Y.S.2d 947 (1984) (evidence that defendant was drunk during incident would have supported finding that defendant acted recklessly and not intentionally; trial court should have instructed on lesser included offense of reckless manslaughter). The common thread in all of these cases is that evidence of intoxication was treated by the courts as evidence of recklessness. We disagree with Claerhout's theory that evidence of his intoxication tends to show he could not attain a reckless state of mind because of his impaired mental function. Because we determine that the requested voluntary intoxication instruction was not factually appropriate, we need not determine whether it could have been legally appropriate. The district court did not err in refusing the requested instruction. We conclude that no error infected the district court rulings on the three issues that Claerhout raised in his petition for review. We affirm the judgments of the Court of Appeals and the district court.

1 PATRICK J. MCANANY, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 115,227 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 310 SUPREME COURT OF KANSAS 939

State v. Fox

No. 115,247

STATE OF KANSAS, Appellee, v. VIRGIL PATRICK FOX, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Motion to Withdraw Plea—Statutory Requirements. The one-year statute of limitations for moving to withdraw a plea in K.S.A. 2018 Supp. 22-3210(e)(1) begins to run for preexisting claims on the date the amended statute became effective, April 16, 2009. A motion filed after the statute of limitations has expired may be granted only if the movant establishes excusable neglect.

2. APPEAL AND ERROR—Denial of Motion to Withdraw Plea—Appellate Review. An appellate court generally reviews the denial of a postsentence motion to withdraw a guilty plea for an abuse of discretion.

Appeal from Cherokee District Court; LORI BOLTON FLEMING, judge. Opin- ion filed December 6, 2019. Affirmed.

Kristen B. Patty, of Wichita, was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Virgil P. Fox directly appeals the district court's denial of his motion to withdraw his 1982 guilty pleas following an evidentiary hearing on the motion. The Kansas Legislature has established a statute of limitations for filing motions to withdraw pleas, which in Fox's situation required him to file his motion before April 16, 2010, or establish excusable neglect that would equitably toll the running of the limitations period. See State v. Mo- ses, 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). Before the district court, Fox argued that deadline should be equitably tolled because he is a layman, was unaware of the statute of limitations, and could not afford an attorney. The district court rejected these arguments and ruled that Fox did not establish excusable neglect. Before us, Fox argues the district court abused its discretion because he was imprisoned in Florida for several years and lacked access to a phone and library materials about Kansas law. Thus, he argues, the statute of limitations should have been equitably tolled.

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State v. Fox

We reject Fox's argument and affirm the district court. The record establishes that Fox was held in a Kansas prison for about seven years before the statute of limitations ran. He thus fails to establish a factual basis for his argument and consequently fails to carry his burden of establishing excusable neglect.

FACTUAL AND PROCEDURAL BACKGROUND

In 1980, the State charged Fox and Richard Carter Adams with two counts of first-degree murder for killing Douglas L. Ashby and Keith Anthony Arthur. In 1982, the State amended its information against Fox to allege Fox aided and abetted Adams in the kidnapping of the men, during which Adams killed them. Fox pleaded guilty to the amended counts of aiding and abetting felony murder, class A felonies. During the plea hearing, the State said it agreed not to seek enhancement of Fox's sentence based on the use of a firearm or on the application of the habitual criminal statute. The State also agreed to recommend that the life sentences Fox would receive on the amended information run concurrent with a federal sentence that Fox also had to serve. As for the factual basis for the pleas, Fox testified that he aided and abetted Adams in the kidnapping of two men who they transported from Missouri to Kansas, where Fox watched Adams shoot and kill the men in a strip pit in Cherokee County, Kansas. Fox said he understood that he would receive a life sentence for the class A felonies and that there could be no other sentence. After a colloquy with Fox, the district court found there was a factual basis for the pleas and that the pleas were voluntarily and intelligently made. The district court later sentenced Fox to life imprisonment on both counts, to run concurrent with each other and concurrent with Fox's federal sentence. The district court later denied Fox's motion to modify sentence. Fox did not directly appeal. The motion now at issue is not the first postconviction motion filed by Fox. In 1990, Fox filed a pro se K.S.A. 60-1507 motion. Through counsel, he later voluntary withdrew the motion without prejudice. In 1992, Fox filed a second pro se K.S.A. 60-1507 motion, raising the same claims he voluntarily dismissed in his first motion. That motion was denied on its merits and because it was

VOL. 310 SUPREME COURT OF KANSAS 941

State v. Fox successive. According to a later order, the Court of Appeals dismissed Fox's appeal. In 1999, Fox filed his third pro se K.S.A. 60- 1507 motion. The district court dismissed the motion because it was successive and the motion, files, and records conclusively showed Fox was not entitled to relief. The Court of Appeals affirmed in an unpublished opinion, and this court denied review. Fox v. State, No. 85,402 (unpublished opinion filed August 3, 2001) (Kan. App.), rev. denied 272 Kan. 1417 (2001). In June 2013, more than 30 years after he entered guilty pleas, Fox filed the K.S.A. 22-3210 motion to withdraw his pleas that is the subject of this appeal. In his pro se motion, Fox acknowledged that he was outside the statutory time limit and was thus statutorily required to show excusable neglect and manifest injustice in order to withdraw his pleas. The district court appointed counsel and held an evidentiary hearing on the motion to determine whether Fox could show excusable neglect and manifest injustice. In support of excusable neglect, Fox argued that he is a layman and had just recently discovered that a manifest injustice had occurred against him. He further argued that Adams, who killed the two victims, was only incarcerated for 16 years, while Fox was going on his 32nd year and did not kill anyone. During the evidentiary hearing, Fox also testified that in 1990, he was transferred to a Florida prison and lacked access to Kansas statute books or other materials while he was there. But Fox also testified that he was transferred back to a Kansas prison in 2003 and has been in Kansas since that time. In support of manifest injustice, Fox's pro se motion asserted that his trial counsel was ineffective. Fox later filed pro se supplemental motions in which he raised additional claims of ineffective assistance of counsel. He also argued his kidnapping and felony murder charges were duplicitous and that the district court lacked jurisdiction over him because he was not in Kansas on the date of the murders (even though the factual basis for his pleas established that he witnessed the killings in Cherokee County). The district court denied Fox's motion orally and through a written journal entry. The court found that the motion was un-

942 SUPREME COURT OF KANSAS VOL. 310

State v. Fox timely and Fox failed to demonstrate excusable neglect. The district court also found several other grounds for denying his motion, grounds we do not reach today. After the district court's ruling, Fox filed a motion for reconsideration and a motion for findings of fact and conclusions of law. The district court summarily denied the motions. Fox appealed to the Court of Appeals. The Clerk of the Ap- pellate Courts transferred the appeal to the Supreme Court under Administrative Order 101. See Supreme Court Administrative Or- der 101 ("Whenever it appears that a case for which exclusive appellate jurisdiction lies in the Supreme Court has been docketed in the Court of Appeals, the Clerk of the Appellate Court may transfer the same to the proper court by notation on the docket and notice to the parties."). This court has jurisdiction under K.S.A. 2018 Supp. 22-3601(b) (appeal must be taken directly to the Supreme Court in "any case in which the defendant has been convicted of a class A felony"). See also Moses, 296 Kan. at 1127 (noting appeal of motion to withdraw guilty pleas involving a first-degree murder conviction invoked this court's jurisdiction under K.S.A. 22- 3601[b]).

ANALYSIS

Under K.S.A. 2018 Supp. 22-3210(d)(2), a motion to withdraw a plea filed after sentencing may be set aside only if necessary to correct a manifest injustice. State v. Davisson, 303 Kan. 1062, 1064, 370 P.3d 423 (2016). And in 2009, the Legislature amended K.S.A. 22-3210 to provide that any action under subsection (d)(2) must be filed within one year of either:

"(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States supreme court or issuance of such court's final order following the granting of such petition." K.S.A. 2018 Supp. 22-3210(e)(1).

See also L. 2009, ch. 61, § 1 (adding the one-year time limit).

The district court may extend this time limit "only upon an additional, affirmative showing of excusable neglect." K.S.A. 2018 Supp. 22-3210(e)(2). This court has determined that for

VOL. 310 SUPREME COURT OF KANSAS 943

State v. Fox claims predating the 2009 amendment, the time limit began to run on the date the statute became effective: April 16, 2009. State v. Szczygiel, 294 Kan. 642, 644, 279 P.3d 700 (2012). So Fox had until April 16, 2010, to file his motion. Moses, 296 Kan. at 1128. Yet Fox filed his motion over three years after the grace period ended. "Accordingly, whether the district court could consider the possible merits of his motion depended upon whether he could meet his burden of showing excusable neglect for his late filing." Davisson, 303 Kan. at 1066. In his pro se motion, Fox tried to establish excusable neglect by arguing he is a layman and could not afford counsel. The district court rejected this argument. On appeal, we review that determination for an abuse of discretion. Moses, 296 Kan. at 1127 (appellate courts generally review denial of postsentence motion to withdraw guilty plea for abuse of discretion). And Fox bears the burden to prove the district court abused its discretion in denying his motion. State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011). Before us, Fox concedes that mere ignorance of the law is not a basis for equitable tolling of a statute of limitations, even for pro se prisoners. See Davisson, 303 Kan. at 1068-69 (discussing authority from other jurisdictions supporting the "basic proposition that ignorance of the law should not constitute excusable neglect for inmates or criminal defendants under K.S.A. 2015 Supp. 22- 3210[e][2]" and applying that proposition when defendant's only argument was that he was previously unaware of his statutory right to file a motion under 22-3210). Despite this concession, Fox argues a petitioner is entitled to equitable tolling by showing a diligent pursuit of rights and that some extraordinary circumstance prevented the timely filing, citing Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010). Fox contends he established excusable neglect at the evidentiary hearing, where he testified that during his Florida incarceration, he was on lockdown and did not have law library or phone access. More specifically, he testified he lacked access to Kansas statute books or other research materials. Fox argues his ignorance of the law created by the denial of access to

944 SUPREME COURT OF KANSAS VOL. 310

State v. Fox necessary materials was an extraordinary factor beyond Fox's control that prevented him from filing within the limitations period set out in K.S.A. 2018 Supp. 22-3210(e)(1). The State counters that Fox's claim is "extremely dubious if not simply disingenuous" because the record establishes that Fox was held in Florida from March 1990 to May 2003, when he was returned to Kansas. This means, according to the State, that Fox had several years with access to a Kansas prison law library containing Kansas law books and other materials. In fact, he had this access when the Kansas Legislature adopted the statute of limitations in K.S.A. 2018 Supp. 22-3210(e)(1) and during the time when his motion could have been timely filed. Plus, he remained in a Kansas prison during the three-year period between when the limitations period expired and when he filed his motion. Fox did not file a reply brief addressing the State's argument on this point. And the record establishes that, after Fox was returned to Kansas, he had nearly seven years to file his motion to withdraw his pleas. Further, Fox's appellate brief raises no other arguments in support of excusable neglect. In summary, we need not consider the merits of Fox's legal arguments, concluding instead he did not meet his burden of establishing any facts that might conceivably support an equitable tolling of the statute of limitations. We hold that the district court did not abuse its discretion in finding that Fox did not establish excusable neglect to permit his untimely filing. As a result, we need not address whether Fox has established manifest injustice. See Davisson, 303 Kan. at 1070.

Affirmed.

1 MICHAEL J. MALONE, District Judge Retired, assigned.

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 115,247 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

VOL. 310 SUPREME COURT OF KANSAS 945

State v. Carpenter

No. 115,713

STATE OF KANSAS, Appellee, v. DANIEL S. CARPENTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sentencing—Application of Statute to Sexually Violent Offenders. K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime committed on or after July 1, 2006. There are no persons convicted of a sexually violent crime on or after July 1, 2006, to whom both subsection K.S.A. 22-3717(d)(1)(A) and subsection (d)(1)(G) apply.

2. STATUTES—Construction—K.S.A. 22-3717(d)(1) Is Not Ambiguous. Constru- ing the statute as a whole and giving effect to all of the subsections, there is no conflict or ambiguity in K.S.A. 22-3717(d)(1).

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 14, 2017. Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed December 6, 2019. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: Daniel S. Carpenter argues the district court incorrectly sentenced him to lifetime postrelease supervision after he was convicted of burglary, theft, criminal damage to property, aggravated indecent liberties with a child, and criminal sodomy. Chiefly based on our recent decision in State v. Brook, 309 Kan. 780, 440 P.3d 570 (2019), we reject his argument and affirm.

FACTS AND PROCEDURAL BACKGROUND

The State charged Carpenter with burglary, misdemeanor theft, and misdemeanor criminal damage to property. In a separate complaint, the State charged aggravated indecent liberties with a child and criminal sodomy. He pled no contest in both cases and was convicted.

946 SUPREME COURT OF KANSAS VOL. 310

State v. Carpenter

The sexually violent offenses of aggravated indecent liberties with a child and criminal sodomy were committed between Feb- ruary 1 and 15, 2008, and both were charged as severity level 3 person offenses. See K.S.A. 22-3717(d)(2)(C) and (D) (defining these offenses as sexually violent). The court granted a downward dispositional departure to probation on these presumptive imprisonment convictions. See K.S.A. 21-4704. In pronouncing the underlying sentence, the court stated, "[T]he total term of incarceration you are facing in the case is 55 months," adding the "[p]ost- release chart under the guidelines is 36 months." But the later journal entry in the case involving the sexually violent offenses instead reflected lifetime postrelease supervision. See State v. Gau- dina, 284 Kan. 354, 358, 160 P.3d 854 (2007) (postrelease supervision is included as part of a complete sentence). Because of Carpenter's eventual probation violations, two years later the district court revoked his probation and imposed the underlying sentence of 55 months as well as lifetime postrelease supervision. More than five years later, Carpenter filed a motion to modify the journal entry to correct a purportedly illegal sentence by confirming the orally pronounced sentence of 36 months' postrelease supervision. The State opposed the motion, arguing lifetime postrelease supervision was mandatory and the 36-month supervision itself was illegal. The district court agreed with the State. A panel of the Court of Appeals affirmed the district court. State v. Carpenter, No. 115,713, 2017 WL 3001025 (Kan. App. 2017) (unpublished opinion). The panel held the correct interpretation of K.S.A. 22-3717 (specifying different periods of postrelease supervision) was that persons who committed sexually violent offenses after July 1, 1993, but before July 1, 2006, are subject to subsection (d)(1)(A) (36 months' postrelease). By contrast, people who committed such offenses after July 1, 2006, are subject to subsection (d)(1)(G) (lifetime postrelease). Carpenter, 2017 WL 3001025, at *3. We granted Carpenter's petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60- 2101(b). Then, on May 10, 2019—while Carpenter's appeal was pending—we released Brook, 309 Kan. 780. Like the Carpenter panel,

VOL. 310 SUPREME COURT OF KANSAS 947

State v. Carpenter there we held K.S.A. 22-3717 provided that persons who committed sexually violent offenses after July 1, 2006, (such as Carpen- ter) are subject to (d)(1)(G)—lifetime postrelease. 309 Kan. at 786. As a result, we issued a show cause order because Brook "appears to be controlling on the sole issue subject to our review." Both parties complied, as discussed below.

ANALYSIS

Issue: Was lifetime postrelease supervision required under K.S.A 22-3717(d)(1)?

Standard of review

Whether a sentence is illegal within the meaning of K.S.A. 22-3504—as Carpenter contends—is a question of law over which we have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

Discussion

The State responded to our show cause order by declaring it knew "of no reason why this Court should not summarily affirm" based on Brook. Carpenter's response conceded (1) both he and defendant Brook were granted probation and (2) this court held Brook's initial term of two years of postrelease supervision under K.S.A. 2013 Supp. 22-3717(d)(1)(D) was illegal. Carpenter further conceded Brook did not support his argument—that his initial term of 36 months' postrelease supervision under 22-3717(d)(1)(A) was legal because he received probation. But he asserts defendant Brook never made (and so the court never addressed) this precise probation-distinctive argument. As a result, he argues this court now should not only consider it but also grant him relief. Generally, the crime and penalty in existence at the time of the offense are controlling, except where the Legislature has given retroactive effect to statutory changes made after the commission of the crime. State v. Herrmann, 53 Kan. App. 2d 147, 149-50, 384 P.3d 1019 (2016) (quoted in Brook, 309 Kan. at 783). Car- penter's argument relies on an interplay among several subsections

948 SUPREME COURT OF KANSAS VOL. 310

State v. Carpenter of K.S.A. 22-3717(d)(1). The relevant 2007 statutory language is as follows:

"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:

"(A) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity level 1 through 4 crimes and drug severity levels 1 and 2 crimes must serve 36 months, plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, and amendments thereto, on postrelease supervision.

. . . .

"(D)(i) The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A), (d)(1)(B) or (d)(1)(C), unless the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months.

. . . .

"(G) Except as provided in subsection (u), persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life." (Emphases added.)

We begin our analysis by observing that in his brief, Carpenter overreads a 2009 decision where we reviewed subsection (d)(1)(A) and (G). Among other things, he argues:

"'Paragraph (G) applies to persons who are released from prison. In [State v.] Ballard, [289 Kan. 1000, 1003, 218 P.3d 432 (2009)], the sentencing court imposed a prison sentence and knew the defendant was going to prison. Here, the Defendant was granted probation. So, at the time of sentencing, the Defend- ant was not subject to subparagraph (G) as he was not, at that time, going to 'be released from prison.'"

But the Ballard court did not base its determination of defendant's lifetime postrelease supervision on subsection (G)'s application strictly to persons who are sentenced to and then released from prison. Rather, "[B]y Ballard's own admission, 22-3717(d)(1)(G) clearly does apply to him. Consistent with that statute, he was 'convicted of a sexually violent crime committed on or . . . after July

VOL. 310 SUPREME COURT OF KANSAS 949

State v. Carpenter

1, 2006.' . . . Therefore, pursuant to subsection (G), he is subject to mandatory lifetime postrelease supervision." (Emphasis added.) State v. Ballard, 289 Kan. 1000, 1012, 218 P.3d 432 (2009). We further observe the plain language of K.S.A. 22- 3717(d)(1) specifically excludes persons subject to subsection (G) from the mandatory (and limited) periods of postrelease supervision set forth in subsections such as (A). Finally, subsection "(G) expressly addresses the postrelease supervision term to be imposed upon sexually violent offenders." State v. Baber, 44 Kan. App. 2d 748, 753, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). In sum, per the Baber court, (G) is more specific than (A) and the "law is clear that a specific provision within a statute controls over a more general provision within the statute." 44 Kan. App. 2d at 753. Thus, when "a defendant is subject to K.S.A. 22- 3717(d)(1)(G), he or she is to be sentenced under that subsection. Any other sentence imposed is illegal." 44 Kan. App. 2d at 754. Carpenter then moves from the 2007 version of K.S.A. 22- 3717 to its 2013 amendments. He claims this latter version simply "clarifies the prior meaning of the statutory language." He argues that because the 2013 amendments changed subsection (D), there must have been ambiguity in 22-3717(d)(1). As mentioned, 22- 3717(d)(1)(D)(i) originally read in 2007:

But after the 2013 amendments, (d)(1)(D) read:

"(D) Persons sentenced to a term of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually motivated crime in which the offender has been ordered to register pursuant to subsection (d)(1)(D)(vii) of K.S.A. 22-3717, and amendments thereto, electronic solicitation, K.S.A. 21-3523, prior to its repeal, or K.S.A. 2013 Supp. 21-5509, and amendments thereto, or unlawful sexual rela- tions, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2013 Supp. 21-5512, and amendments thereto, shall serve the period of postrelease supervision as provided in subsections (d)(1)(A), (d)(1)(B) or (d)(1)(C) plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, prior

950 SUPREME COURT OF KANSAS VOL. 310

State v. Carpenter to its repeal, or K.S.A. 2013 Supp. 21-6821, and amendments thereto, on postrelease supervision." (Emphases added.) K.S.A. 2013 Supp. 22-3717.

Carpenter argues that because the 2013 amendment to (D) points to the limited period of postrelease supervision set out in (A), then (G)'s lifetime postrelease supervision is at odds with both (A) and (D). The Baber court essentially rejected his argument regarding (A) and (G), however. And we explained in Brook that amended subsection (D) and the original (G) are reconcilable. There we approvingly quoted Herrmann, 53 Kan. App. 2d at 153:

"'Herrmann asserts K.S.A. 2015 Supp. 22-3717(d)(1) is ambiguous because the provisions of subparagraphs (D) and (G) directly conflict with each other on the proper term of postrelease supervision to impose: one provides for a term of months based on severity level of the sexually violent crime and the other requires a lifetime term. Herrmann argues that the rule of lenity should resolve the ambiguity in his favor by imposing the lesser of the two postrelease supervision terms. We disagree. The provisions in each subparagraph apply to a distinct class of persons. K.S.A. 22-3717 as a whole applies to all persons convicted of a crime after July 1, 1993. See L. 1992, ch. 239, sec. 270 ("Persons sentenced for crimes committed on or after July 1, 1993, will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence."). Subparagraph (G) was added to the statute in 2006 to create an explicit exception applicable only for "persons convicted of a sexually violent crime committed on or after July 1, 2006." See L. 2006, ch. 212, sec. 19 (also adding language to [d][1] excepting "persons subject to subparagraph [G]"). Reading subparagraph (D) in pari materia, it falls under subsection (d)(1) and so applies to all persons but those expressly excluded: persons sentenced for off-grid crimes committed on or after July 1, 1993, and persons committing a sexually violent crime on or after July 1, 2006, as stated in subparagraph (G). Therefore, subparagraph (D) only applies to persons convicted of a sexually violent crime after July 1, 1993, but before July 1, 2006. Thus, there are no persons convicted of a sexually violent crime to whom both subparagraph (D) and subparagraph (G) apply. Construing the statute as a whole and giving effect to all of the statutes, as this court must, there is no conflict or ambiguity in amended subsection (d)(1).'" (Emphasis added.) Brook, 309 Kan. at 785.

In addition to holding "there is no conflict or ambiguity" within amended subsection (d)(1), we also ruled the earlier version had contained no conflict or ambiguity.

"'The legislative history of the 2013 amendments confirms that the new language in subparagraph (D) was not intended to create a conflict with subparagraph (G). Instead, the changes were actually meant to maintain the same term of postrelease supervision for certain offenders, including persons who committed a sexually violent offense between July 1, 1993, and June 30, 2006, despite

VOL. 310 SUPREME COURT OF KANSAS 951

State v. Carpenter change to reduce postrelease supervision generally. . . . In a nutshell, the postrelease supervision calculation for persons convicted of a sexually violent crime between July 1, 1993, and June 30, 2006, remained the same as it was prior to the 2013 amendments.'" (Emphasis added.) Brook, 309 Kan. at 785-86 (quoting Herrmann, 53 Kan. App. 2d at 153-54).

In sum, the date of the sexually violent offense is the controlling factor, with (G) applying to persons who, like Carpenter, committed sexually violent crimes on or after July 1, 2006. Brook, 309 Kan. at 786. Like the Carpenter panel, we therefore reject his latest argument—a distinction of postrelease supervision for persons who are sent to prison versus those who are granted probation—as inconsistent with the plain language of the statute and our prior caselaw. Carpenter, 2017 WL 3001025, at *3 ("Through these amendments, the legislature did not intend to draw a distinction between persons sentenced directly to prison and persons granted probation.").

Conclusion

For determining length of postrelease supervision, the Legis- lature clearly has distinguished between the categories of sexually violent offenses in K.S.A. 22-3717(d)(1) (D) and (G) based on the date of their commission, not by sentences of probation versus prison. See Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007) ("The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained."). Due to the nature and timing of his offenses, Carpenter is subject to lifetime postrelease supervision under 22-3717(d)(1)(G).

We affirm the district court and the Court of Appeals.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 115,713 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

952 SUPREME COURT OF KANSAS VOL. 310

State v. Pruitt

No. 118,448

STATE OF KANSAS, Appellee, v. HOWARD R. PRUITT, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Statements of Prosecutor—No Reversal of Conviction Required in This Case. Prosecutor's statement in summing up testimony about alleged murder weapon, "This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point," was an impermissible personal opinion; but it does not require reversal of the defendant's premeditated first- degree murder conviction.

2. SAME—Statements of Prosecutor Regarding Victim—In This Case Not Er- ror. Prosecutor's statement that the victim deserved jurors' "consideration" was not error, when the context of the statement demonstrates that the prosecutor was not attempting to invoke the jury's sympathy.

3. SAME—Statements of Prosecutor—In This Case Not Misstatement of Law. Prosecutor's statement, "Folks, if you're convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged," was not an impermissible misstatement of the law because it forbade jury nullification.

4. SAME—Jury Instructions—Failure to Instruct on Second-Degree Murder and Reckless Involuntary Manslaughter—Not Reversible under Clear Error Standard. Even if the district judge's failure to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter in this case is assumed to be error, the error is not reversible under a clear error standard, when there was overwhelming evidence that whoever shot the victim to death did so by firing a shotgun loaded with triple-aught buck from close range after lying in wait for about 10 minutes, and strong evidence demonstrates that the person who shot the victim was the defendant.

5. SAME—Jury Instructions—In This Case No Error in Instructions. A district judge's instructions to the jury, (a) "Such law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be"; (b) "At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict"; and (c) "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them," are correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019). They do not direct a verdict of conviction or prevent a jury from exercising its power of nullification.

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State v. Pruitt

6. SAME—Question Regarding Jury Misconduct—No Abuse of Discretion by District Judge in This Case. The district judge in this case did not abuse his discretion in finding that no fundamental failure due to jury misconduct occurred in the trial of the defendant's case. The judge was able to observe the defendant's daughter, who testified about observing a juror sleeping, and evidently made a negative credibility judgment. The judge also made a careful record of other, unrelated trial participants' recollections, including his court reporter's and his own; and those recollections did not match that of the defendant's daughter.

7. CRIMINAL LAW—Cumulative Error Doctrine—Reversal Not Required under Facts of This Case. Defendant is not entitled to reversal of his conviction under the cumulative error doctrine.

Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed December 6, 2019. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Cheryl M. Pierce, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This direct appeal by defendant Howard Pruitt raises five challenges to his first-degree premeditated murder conviction for the shotgun killing of Phillip Little. Pruitt asserts that the prosecutor committed error during closing argument, that the district judge should have instructed the jury on lesser included offenses of reckless second-degree murder and reckless voluntary manslaughter, that the jury's power of nullification was improperly foreclosed by erroneous instructions, that a new trial should have been granted because one juror slept during part of the proceedings, and that his conviction is infected by cumulative reversible error. We reject all of Pruitt's arguments on error save two, and we conclude that, even if we find one error and assume the existence of another, those two errors do not individually or collectively command reversal of Pruitt's conviction. This is a case in which the defendant's guilt of first-degree premeditated murder was supported by truly overwhelming evidence. The errors could not have made a difference in the outcome.

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State v. Pruitt

FACTUAL AND PROCEDURAL BACKGROUND

Bad blood developed between Pruitt and Little before the fatal shooting. Nathan Coe, aware of their ongoing disagreement and having come to understand that Pruitt was interested in harming or paying someone else to harm Little, called Pruitt on the night of the shooting to let him know that Little was at Skylar Morgan's trailer home. Coe and his father had been hanging out with Little and others at Morgan's that evening. The others at the trailer were Morgan, Bobbie Myers, and Matthew Kreusel. About 11 p.m., Coe and Myers left to buy liquor, eventually obtaining vodka at the home of Michelle Morris. When they returned to the trailer, they disagreed on whether the correct amount had been paid for the vodka, and Kreusel drove Myers back to Morris' house to settle the issue. This left Coe, his father, and Little awake at the trailer; Morgan was already asleep in his bedroom. According to Coe, while Myers and Kreusel were gone, he and Little stepped onto the porch of the trailer and Pruitt, who had been waiting outside, immediately fired a shotgun at Little. Pruitt then fled, while Coe ran back into the trailer. Morgan would testify at Pruitt's eventual trial that Coe woke him up and told him Little was dead on the porch. Morgan called 911 and "got everybody in the bedroom because [he] was scared." When Coe asked to borrow Morgan's truck, Morgan told him, "Yeah, take my truck; get out of here. I'm scared; you're scared." When Myers and Kreusel returned a few minutes later, Morris was with them. As they pulled up, Myers noticed that both Mor- gan's truck and the car Coe and his father had arrived in were gone. When Myers saw Little lying on the porch, she screamed for Mor- gan to come help her. Morgan came outside and told her Little had been shot and directed her to "step away." When El Dorado police officers arrived at Morgan's trailer, they found Little dead on the porch and Morgan, Myers, Kreusel, and Morris at the scene. They soon learned that Coe and his father also had been at the trailer that evening. Eventually, Coe returned; and the officers brought him into their station for an interview. Coe's story shifted from less to more detailed over the series of interviews that followed. At first he shared only the basics: He

VOL. 310 SUPREME COURT OF KANSAS 955

State v. Pruitt heard a "boom" when he left the trailer with Little, realized Little had been shot, went into the trailer and asked to borrow Morgan's truck, and left. His later version of events included his identifica- tions of the gun as a .410 double-barreled sawed-off shotgun and the shooter as Pruitt. He also told law enforcement that Pruitt and Jake Perry had put a "bounty" on Little, which Little had mentioned when they talked at Morgan's. Coe claimed "there had been $5,000 offered" but Little had "laughed it off."

According to the interviewing detective, Coe said

"that he had contacted Mr. Pruitt by telephone and informed Mr. Pruitt that . . . Mr. Little was at the trailer. [Coe] said that he was aware that Mr. Pruitt was . . . looking for Mr. Little. And he had also said that Mr. Little had made comments throughout the evening that he was wanting somebody to bring Mr. Pruitt to him.

. . . .

"He'd explained . . . that the shooter . . . had popped up at the deck and had fired. And . . . that he had r[u]n east."

Coe also said he had not expected Pruitt to bring a gun with him to the trailer. Rather, he thought Pruitt would give Little an "[a]ss-whooping, very minimal." When the detective questioned Pruitt the same day, Pruitt acknowledged that he and Little had ongoing issues, but he denied shooting Little. The State charged both Pruitt and Coe in Little's murder. Coe was in custody for 104 days before the charges against him were dismissed with prejudice and he was released. Investigators were, at least initially, unable to find the gun used in the shooting. After an anonymous Crime Stoppers tip, a sawed-off single-barrel shotgun that, according to the retrieving officer, "looked like a .410" was found in the Walnut River. When Pruitt's case went to trial, before voir dire began, the district judge outlined for potential jury members how the matter would proceed. The judge's outline included:

"After each side completes its case, I must then instruct you on the law that applies to a given case. Such law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be.

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State v. Pruitt

"As jurors, it is your duty to hear the evidence and to determine the facts from the evidence. You are then obliged to apply the law as given to the facts as you find them to be and, thus, to arrive at your verdict."

After voir dire and the parties' opening statements, the district judge provided the jury with preliminary instructions, including:

"Now that you have been chosen as jurors for this trial, you're required to decide the case only on the evidence admitted.

"At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict."

In addition to the events described above, trial testimony included Myers' description of Coe's possession of a handgun on the night of the shooting and Kreusel's account of a conversation between Little and Coe, in which Coe said he "would be able to get a lot of money" if he were to "pop [Little] in the head." Little's reaction to this statement, according to Kreusel, was "laid back, drunk, sittin' on the floor." During cross-examination, Kreusel testified that he received a phone call the day after Little's murder from Coe's wife, in which she said Coe had been "offered money if he were to take [Little] out." Kreusel said his impression was that Coe's wife "had a feel- ing that he might do it, but . . . she wasn't sure." During Morgan's testimony at Pruitt's trial, in addition to confirming the facts recited above, Morgan said he knew that Little had been having "a little bit of trouble with [Pruitt]," although he had no details and did not know Pruitt personally. He had not heard Coe make the "pop" statement to Little, but Kreusel told Morgan about it the next morning. When Coe testified at Pruitt's trial, he admitted he had a gun in the car he was driving on the night of the murder. He described learning that Pruitt had problems with Little the first time he met Pruitt, about six weeks earlier. The problems had to do with Lit- tle's behavior toward a woman and Little spray-painting "meth- head" or "meth dealer" or something similar on Pruitt's house. Coe denied that Pruitt had ever suggested someone could make money by hurting or killing Little. The night of the shooting, Coe testified, he called Pruitt within 30 minutes of arriving at the trailer "to let him know the person he

VOL. 310 SUPREME COURT OF KANSAS 957

State v. Pruitt had issues with was around." He denied having told Little that "it would be worth a lot of money if [he] popped him right now." When Coe and Little stepped onto the porch of the trailer shortly before midnight, Coe heard a "very, very loud" gunshot immediately. Coe said that he did not realize right away that Little had been hit but that he heard a "ruckus" to his right, turned, and could see Pruitt had been the shooter. When Coe was asked if Pruitt had ever shown him a gun before the night of the murder, Coe said Pruitt had shown him a "sawed-off double barrel .410 shotgun" purchased from Billy Hise. Coe described the shooter's gun as "identical" to this .410 sawed-off shotgun. Coe also testified at trial that he had intended to borrow Mor- gan's truck earlier in the evening and that he did so after the shooting. He said he had not had a chance to ask earlier and was worried that the police who responded to the trailer would discover he had a "warrant . . . for my arrest from a previous incident with my wife." Several more witnesses testified about the recovered gun and linked Pruitt to it. Cassandra Maynard described statements made by her ex- boyfriend, Ralph Ballinger. He had told her

"[t]hat he was working with [Hise] and his younger son changing a tire the night of that and that, uh, a guy named Pops came and asked Ralph if he could drive him to a party so they could scare a gentleman, because . . . he was abusing a woman, supposedly, is what he said. And so he drove him over there and parked a couple blocks away. Um, Pops went up to the house, came back, told him: 'We need to get out of here.' And Ralph drove off and . . . went back to [Hise's] house, got out, and Pops drove off."

Maynard had never met the person that Ballinger described to her as "Pops." Ballinger recounted a similar, although not identical, story when he took the stand. The night of the shooting, he was with Hise at the home they shared. Pruitt arrived and asked Ballinger if he wanted to run with him to get gas. Ballinger agreed. "Then [Pruitt] also talked about gettin' to go talk to somebody." Ballinger came with him, "just in case there was—somethin' happened, because he—he wanted to talk to a guy about somethin', and he was, like out-numbered." While they were getting gas, Pruitt's phone rang. "He got a phone

958 SUPREME COURT OF KANSAS VOL. 310

State v. Pruitt call from a guy named Nate. . . . And he said: 'Well, he's home by himself. I wanna go out and talk to him.'" Ballinger denied knowing the identity of the person Pruitt wanted to confront. Ballinger testified that when he and Pruitt neared Morgan's trailer, Pruitt "got out of the truck and pulled out a gun." Ballinger described the gun as "a little sawed-off .410 open . . . break over gun" that had "a rubber band with a little small shell on top—underneath of it." Ballinger had heard that Pruitt got the gun from Hise. Ballinger said he tried to prevent Pruitt from taking the gun with him to the planned confrontation.

"I asked him: 'What are you doin'?' He goes: 'I'm just gonna go scare him.' And I told him: 'Ain't no—you don't need a gun to go scare him. You don't need to go threaten him.' He goes: 'I'm just gonna go shoot him in the butt.' I said: 'You don't need to do that. Please put the gun back. It ain't worth it. Please put the gun back.'" (Emphasis added.)

Pruitt nevertheless took the gun with him. About 10 minutes later, Ballinger heard a gunshot. He then "took off" because he "didn't want no part of it." The third witness who discussed Pruitt's connection to the gun was Perry, who had been Pruitt's roommate and had known Little for several years. Perry testified about the spray-painting incident for which he believed Little to be responsible. Perry also testified that he had been told Little had pulled a gun on Pruitt. The night of the murder, according to Perry, Coe had been at the house Perry and Pruitt shared early in the evening. The prosecutor asked Perry if he had "ever heard Nathan Coe and . . . Howard Pruitt discuss money . . . , say $5,000, to do a job?" And Perry said he had heard Pruitt and Coe say something on the subject as they were leaving the house. Later that night, Perry said, Pruitt woke him up and said, "'I shot him,'" referring to Little. Pruitt told Perry where to find the gun, a "short shotgun." Perry found the gun where Pruitt told him it would be and threw it over a bridge railing. When Perry viewed photographs of the gun investigators eventually recovered from the Walnut River, he identified the gun pictured as the same one he retrieved and disposed of at Pruitt's direction. Other testimony in the State's case established that a search of Pruitt's vehicle turned up "a Federal Firearms .410 shotgun shell

VOL. 310 SUPREME COURT OF KANSAS 959

State v. Pruitt with a copper-colored projectile at the top of it." In addition, a forensic pathologist testified about the two projectiles recovered from Little's body. The pathologist identified the cause of Little's death as the projectile that had gone through his aorta and trachea. A Kansas Bureau of Investigation analyst involved in testing the recovered gun told Pruitt's jury about it and other items given to the KBI by the police. Those items included "an unknown pol- ymer item," two live Federal .410 shotshells, and two fired shot pellets. After clean-up, the analyst said, the recovered shotgun was functional. One of the two live shotshells had been connected to the barrel of the gun; the other was found in Pruitt's vehicle. Both shells were "consistent with Federal Personal Defense . . . 410 bore shotshells, and they [were] loaded with four pellets of . . . triple-aught buck." The two fired pellets recovered during Little's autopsy were copper in color and made of copper-plated lead. The "weight and all of the physical characteristics of the[] two pellets [were] consistent with being triple-aught buck." Kreusel, Coe's attorney, and Pruitt's doctor testified for the defense. Kreusel described the surface conditions surrounding Mor- gan's trailer, stating that it would not be safe to walk at a "fast pace" through there because of all the potholes. Coe's attorney testified that he had a conversation with Coe about the consequences of the State dropping the charges against him, including that he would no longer have a Fifth Amendment privilege against self- incrimination. Pruitt's cardiologist testified that Pruitt had "symp- toms consistent with blockages in the arteries in his legs," which could have affected his ability to walk or run. At the conclusion of the trial evidence, the district judge instructed the jury on the law of the case.

"MEMBERS OF THE JURY: It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them.

"In your fact finding, you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence."

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State v. Pruitt

The judge's final jury instruction informed the jury that it needed to select a presiding juror and included a description of how to reach a verdict.

"When you retire to the jury room, you will first select one of your members as Presiding Juror. The person selected will preside over your deliberations, will speak for the jury in Court, and will sign the verdict upon which you agree.

"Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.

"Your agreement upon a verdict must be unanimous."

The judge instructed the jury on the charged crime of premeditated first-degree murder and the lesser included crime of intentional second-degree murder. Neither party objected to the language of any instruction or to the giving or omission of any instruction. During closing argument, the prosecutor discussed the evidence supporting the State's claim that the gun found in the river was the same gun used in Little's murder.

"So identifying this gun, this mystery gun, and the descriptions thereof. Multiple witnesses generally got it right; multiple witnesses generally got it wrong. Green and black camo, or is it brown? Is it single or double barrel? Is— that lever on top, is that a hammer, or is that a release? Well, what we have consistently is everybody said it was kind of a small shotgun, hand-held. Those that identified the width of that barrel called it a .410. 'Or it sounded like a .410' was another comment. And, of course, we have ammunition that seems to back up that there's at least some consistency throughout.

"This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point. That .410 was found in the car—the .410 round was found in the car of Howard Pruitt; the gun found in the Walnut River. We've heard the testimony. (Long pause.)

"Uh, it's—it's important to note the KBI tested that firearm; that the firearm was operable. He got it to operate. And by the testimony you heard, that was after it was underwater for six months.

"The rubber band was described a couple of different ways. I think it was Nathan Coe that said it was a leather, uh—but it's a wide rubber band, uh, that was holding a .410 shotgun shell to the barrel. Again, all of that is for your review. So if identification of the gun is an issue, uh, I think that's been resolved." (Emphases added.)

VOL. 310 SUPREME COURT OF KANSAS 961

State v. Pruitt

After a discussion of the elements of first-degree murder and second-degree murder, the prosecutor mentioned the role Little should play in the jury's deliberations.

"Your options are to find the defendant guilty of first-degree murder; premeditated, intentional murder of Phillip Little on or about August 2nd, 2016.

"Your next option is second-degree murder; that is to say, that he killed him without premeditation. Now, as the attorney for the State, I'm suggesting to you that there is ample evidence of premeditation, but that is your determination to make.

"The third option is not guilty.

"Folks, Phillip Little deserves your consideration, certainly. If you didn't approve of his lifestyle; if you didn't approve of his spray-painting/graffiti work; if you didn't approve of the folks that they hung out with, that's really not the determination to make.

"The question is: What did Howard Pruitt do that night? What evidence is there to show that he took Phillip Little's life? What evidence is there to show that Phillip Little [sic] intended to take Phillip Little's light—life and that he knew exactly what he was doing that night when he went there?"

Finally, the prosecutor concluded his closing argument with directions for the members of the jury, should they be convinced beyond a reasonable doubt of each of the elements of first-degree murder.

"Folks, if you're convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged.

"With that, I thank you very much for your attention." (Emphasis added.)

The jury found Pruitt guilty of premeditated first-degree murder. Before sentencing, Pruitt moved for a new trial, alleging one of the jurors had been asleep during portions of the trial. At an evidentiary hearing held several months after the trial concluded, Pruitt's daughter testified that she had seen a juror asleep: "[T]he lady couldn't even keep her eyes open. . . . I mean she was nodding out for hours at a time." She said that she had "let [defense counsel] know that [a juror was] fallin' asleep." When she told counsel, i.e., the same lawyer introducing her testimony at the hearing on

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State v. Pruitt the motion for new trial, he told her that he could not see the juror because of a lectern in the way. Pruitt's daughter could not identify the juror, although she might have been able to do so right after trial. At the motion hearing, she pointed to an area of the jury box and stated, "in the front, maybe the second or third maybe." She also said: "I honestly—it's almost like—I'm tryin' to think of who it was. I could—maybe that red short spiky-haired girl. But I'm not gonna call somebody out that I don't know 100 percent who it was." The State questioned Pruitt's daughter, and then the district judge asked her what she did with the information that a juror was sleeping.

"Uh, the minute recess was in . . . session, I stated to [defense counsel] if I could talk to him. He pulled me in that side room right there (indicating), and I proceeded to tell him she was sleeping and I was wondering how nobody else can see it when I'm in the very back and everybody here (indicating) is in the front. We have a sheriff standing up (indicating). I don't know the legal stance, but, in my eyes, she should have been removed from that second."

After hearing arguments from the parties, the district judge put his recollections of trial on the record.

"[A]nd the Court brought to the attention of both, I think, Mr. Jensen and to, uh, the State, Ms. Pierce and Mr. Devinney, that the, uh—myself, um, made observations in regards to viewing of the jury throughout the course of the trial. And, actually, this was a trial that Mrs. Cross, the courtroom bailiff, was in the courtroom the entire trial. It was—it was not just certain parts of the trial she was present. And I made inquiry to her as to if she observed any jurors nodding off, falling asleep, being groggy, and she did not. And I made inquiry to counsel as to how, um, they would like that presented for the record. And I believe that it was, uh, agreed to be appropriate that my statement on the record to the effect that I just made would be appropriate and sufficient."

Both the State and defense counsel acknowledged that they had spoken to other court personnel, and none indicated that a juror had been sleeping. Defense counsel also put his observations and arguments on the record.

"I recall that, uh, I—I believe counsel—I think—I think we had an off-the record discussion, literally right back here (indicating), about the potential problem and, uh, that there was some indication that maybe all was not well. And I mentioned, I—I believe—and I don't think it made the record necessarily, but I want it to now. But I was limited in my ability to do anything about it because of my—

VOL. 310 SUPREME COURT OF KANSAS 963

State v. Pruitt literally, because of my location. Because when seated at this desk, uh, there are (long pause) five seats, and they're all at this (indicating) end that I can observe. Uh, and, of course, when I'm not seated, I'm focused on a witness. And, of course, the same thing is true for counsel. So I think we ought to look at this not just in terms of 'Was it seen,' because that doesn't equate to 'Did it happen or not happen?'

"Observations—uh, everybody in this courtroom has a job that would focus their attention away from a juror—uh, the jury on a regular basis, and I'd ask the Court take that into consideration."

At that point in the motion hearing, the district judge took an off-the-record recess to sit in defense counsel's chair and view the jury box from that vantage point. In addition, the judge and counsel met and talked with other court staff. When the hearing resumed, the district judge described the substance of those conversations on the record.

"The Court has taken the opportunity to meet with counsel, uh, myself; uh, our court reporter; and our courtroom bailiff and—for the purpose of confirming, uh, what was . . . previously placed on the record. I believe it's correct to state that there would be no change in the record in regards to [the bailiff's statement]. There's no change in the statement as far as myself, as the judge of the trial, and observances.

"The court reporter . . . has made a statement, and I believe that placing the statement on the record was agreeable to counsel, as opposed to placing, uh, her under oath, as she is an officer of the Court."

The district judge read the court reporter's statement into the record:

"THE COURT: . . .

"'I saw a (lady) juror, (zookeeper), front row, nodding off at the beginning and struggling to keep her eyes open. At the recess, I brought it to the Court's attention. The Court advised he would watch said juror. I don't remember any more instances of nodding off after that.'"

Based on this evidence and the other recorded observations, the district judge rejected Pruitt's claim of juror misconduct.

"Subsequently, the Court (long pause) has found, pursuant to that case law . . . that no contemporaneous objection was made as to an inattentive juror, a type of juror misconduct.

"The Court, subsequently, does find that there does need to be definitive evidence of jury misconduct. The Court has previously . . . stated that, as the

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State v. Pruitt judge, there was no inattentiveness by the jurors that I ever detected during the course of the trial; . . . never detected that someone appeared to be asleep or unconscious where due process rights of Mr. Pruitt would have been denied.

"The Court does find that even in the event that there was a struggling or a straining of an individual to remain attentive, that that is not the same as being in—inattentive.

"And, subsequently, the Court finds that the due process rights of Mr. Pruitt have not been denied by any type of juror misconduct . . . in this case . . . that being a juror falling asleep.

". . . [T]he Court . . . does overrule and deny the motion for a new trial."

The district judge then sentenced Pruitt to a hard 25 life sentence.

DISCUSSION

Prosecutorial Error

Appellate review of a claim of prosecutorial error is a two- step process.

"First, the appellate court must decide whether the challenged prosecutorial act falls outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. Only if that error is found, the appellate court moves to the second step of determining whether the error prejudiced the defendant's due process rights to a fair trial, utilizing the constitutional harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error is harmless if the State proves beyond a reasonable doubt that 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. Haygood, 308 Kan. 1387, Syl. ¶ 3, 430 P.3d 11 (2018).

During closing argument, "a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the jury's passions or prejudices or divert the jury from its duty to decide the case based on the evidence and controlling law." State v. Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012). Pruitt takes issue with three different statements made by the prosecutor in his case. He asserts that "This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point" was an impermissible personal opinion; that "Folks, Phillip

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State v. Pruitt

Little deserves your consideration, certainly" was an impermissible appeal to the sympathies of the jury; and that "Folks, if you're convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged" was an impermissible misstatement of the law because it forbade jury nullification.

"This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point."

This challenged statement was uttered in the middle of the prosecutor's discussion of consistencies and inconsistencies among witnesses' descriptions of the gun, as well as the forensic evidence about the gun and projectiles. The prosecutor concluded this discussion with "[a]gain, all of that is for your review. So if identification of the gun is an issue, uh, I think that's been resolved." As this court has recognized, "the prosecutor's personal views are irrelevant to the task before the jury," State v. Charles, 304 Kan. 158, 173, 372 P.3d 1109 (2016), abrogated on other grounds by State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017); and they may constitute a form of unsworn testimony from a law-trained courtroom character likely to be endowed with outsized influence. See State v. Akins, 298 Kan. 592, 605, 315 P.3d 868 (2014) (noting jury's tendency to "'overvalue what is effectively unsworn testimony by a highly regarded prosecutor'"). But "[t]he context of a challenged statement matters." State v. Anderson, 308 Kan. 1251, 1261, 427 P.3d 847 (2018). In 2016's Charles opinion, this court put prosecutors on notice "that any temptation to say 'I think' should be rebuffed and replaced with 'the evidence shows' or 'I submit' or a similar, less potentially subjectively loaded phrase." 304 Kan. at 175. In Charles, the prosecutor had prefaced many of his statements during closing with "I think" or similar phrases. The court concluded that the prosecutor's statements did not fall outside the wide latitude afforded prosecutors because it was "convinced that the 'I thinks' littering the transcripts in this case [were] mere verbal tics." 304 Kan. at 175.

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State v. Pruitt

Two years later, in State v. King, 308 Kan. 16, 33, 417 P.3d 1073 (2018), this court unequivocally concluded that the prosecutor's statements, "I think there's sufficient evidence for you to find beyond a reasonable doubt that these two defendants . . . committed the following crimes" and "I don't think that excludes him based on the evidence from having committed these crimes" were "impermissible conveyances of the prosecutor's opinion to the jury" rather than mere verbal tics. 308 Kan. at 33. Yet we declined to declare the comments error, "because when the prosecutor made these statements at King's trial, we had not yet placed prosecutors on notice that such comments were improper." 308 Kan. at 33-34. The prosecutor in this case does not get the benefit of the same shelter extended to the prosecutor in King. Charles was decided on April 22, 2016, a year before this case went to trial. Given this court's previous warning against the use of "I think" and the amount of time between publication of Charles and the trial in this case, the prosecutor's use of the phrase here qualified as error.

"Consideration" for Little

Pruitt's argument that the prosecutor's statement about "consideration" for Little was error is wholly without merit. This is not a case when the prosecutor was making an appeal to give the victim "justice." See Anderson, 294 Kan. at 463; see also State v. Henry, 273 Kan. 608, 640-41, 44 P.3d 466 (2002) (improper to ask jury to consider crime's impact on victim's family). Quite the opposite. Here, the prosecutor was merely acknowledging that Little could be viewed unfavorably because of his past misbehav- ior toward the defendant. Multiple witnesses had testified about the ongoing dispute between Little and Pruitt, and its genesis seemed to lie at Little's feet. Rather than asking the jury to consider the personal characteristics of the victim, the prosecutor asked the jury to ignore those characteristics and focus on whether Pruitt was guilty of murdering Little.

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State v. Pruitt

Forbidding Jury Nullification

Pruitt's final challenge to the prosecutor's closing argument relies on the jury's historical power of nullification. See State v. Smith-Par- ker, 301 Kan. 132, 340 P.3d 485 (2014). In Pruitt's view, the prosecutor erred by telling the jury it "must" convict if it was convinced beyond a reasonable doubt that the State had proved the elements of first-degree murder. We have acknowledged that "[j]uries possess the power to decide a case in a manner which is contrary to the applicable facts and law, i.e., the power of jury nullification." State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011); see also State v. McClana- han, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (although jury has "raw physical power" to disregard rules of law and evidence, proper "function and duty" of jury to accept rules of law given in instructions by court). But we have consistently rejected defendants' arguments that a jury should be affirmatively or explicitly instructed on its power of nullification. See Smith-Parker, 301 Kan. at 164. And our most recent pronouncement on this subject in State v. Boothby, 310 Kan. 619, 630, 448 P.3d 416, 424 (2019), made clear that the jury only has this power, not a right. In Smith-Parker, we held that an instruction from a trial judge that a jury "must" or "will" enter a guilty verdict flies "too close to the sun of directing a verdict for the State." 301 Kan. at 164. A "judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt." 301 Kan. at 164. But an instruction from the court is fundamentally different from a prosecutor's closing argument, and Smith-Parker does not dictate an outcome in favor of Pruitt on this issue. Here, the prosecutor merely used the word "must" to summarize and emphasize the ways in which the State's evidence proved the elements of the charged crime. This statement by the prosecutor was not error.

Reversibility

Because we have held that the prosecutor's use of "I think" was error, we must move to the second step of analysis and determine whether the error was harmless under Chapman. As noted above, "[p]rosecutorial error is harmless if the State proves beyond a reasonable doubt that the error will not or did not affect the

968 SUPREME COURT OF KANSAS VOL. 310

State v. Pruitt trial's outcome in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict." Haygood, 308 Kan. 1387, Syl. ¶ 3. The prosecutor's "I think" statements in this case were embed- ded in the prosecutor's recitation of trial evidence about the gun. They would not have added meaningfully to the appropriate ad- vocacy in the moment—the prosecutor's dispassionate demonstration that any discrepancies in witnesses' descriptions of the gun were minor in contrast to the points on which they agreed that were consistent with the physical evidence. Moreover, although evidence about the gun was an important piece of the State's case, there was abundant other evidence supporting Pruitt's conviction, including his identification by one eyewitness and his confessions to others. The prosecutor's brief indiscretions do not merit reversal.

INSTRUCTIONS ON LESSER INCLUDED OFFENSES

This court applies a four-step analysis to challenges to jury instructions.

"(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in [State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert denied 565 U.S. 1221 (2012)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

Pruitt acknowledges in his brief that he did not object to the trial judge's omission of instructions on lesser included crimes of reckless second-degree murder and reckless involuntary manslaughter. Thus, unless Pruitt can show clear error, he is not entitled to reversal on this appeal. See State v. Garcia-Garcia, 309 Kan. 801, 819-20, 441 P.3d 52 (2019). The State and Pruitt agree that reckless second-degree murder and reckless involuntary manslaughter instructions were legally appropriate. See Plummer, 295 Kan. at 161 (lesser included

VOL. 310 SUPREME COURT OF KANSAS 969

State v. Pruitt crime); K.S.A. 2018 Supp. 21-5109(b)(1) (lesser degree of same crime). The State and Pruitt disagree on whether the instructions were factually appropriate.

"K.S.A. 2018 Supp. 22-3414 provides that, '[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 2018 Supp. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.' We recently reiterated that '"lesser included offense instructions must be given when there is some evidence, [viewed in a light most favorable to the defendant,] emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime."' State v. Haygood, 308 Kan. 1387, 1408, 430 P.3d 11 (2018) (quoting State v. Seba, 305 Kan. 185, 204, 380 P.3d 209 [2016]). However, a defendant's unsupported and self-serving statement of intent may not offer enough factual support for an instruction, depending '"on the extent to which the other evidence repudiates the statement."' Haygood, 308 Kan. at 1409 (quoting Seba, 305 Kan. at 204)." State v. Gentry, 310 Kan. 715, 722, 449 P.3d 429 (2019).

Pruitt advances two arguments to support factual appropriateness. The first is evidence-based and the second is statute-based. The evidence-based argument points to Ballinger's testimony that Pruitt only wanted to scare Little and said he intended only to "shoot him in the butt" and asserts it could support a jury verdict that the homicide was reckless. See State v. James, 309 Kan. 1280, 1299, 443 P.3d 1063 (2019) (quoting K.S.A. 2018 Supp. 21- 5202[j]) (differentiating between degrees of recklessness needed for two crimes; person acts "recklessly," is "reckless" when person consciously disregards substantial, unjustifiable risk "that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation"); see also State v. Gonzalez, 307 Kan. 575, 581, 412 P.3d 968 (2018) (outlining requirements of unintentional second-degree murder, reckless involuntary manslaughter). Recklessness is not limited to "blind conduct." See James, 309 Kan. at 1299 (quoting State v. Deal, 293 Kan. 872, 884, 169 P.3d 1282 [2012]) (even intentional blow can result in unintentional but reckless killing; "'[I]t is not the intent to inflict a blow but the intent to kill that is the focal point' of the distinction between intentional second-degree murder and unintentional but reckless second-degree murder."); see also Gentry,

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State v. Pruitt

310 Kan. at 727 (evidence reasonably supported theory shooter fired toward truck without intent to kill whoever might be inside). Pruitt's statutory argument relies on K.S.A. 2018 Supp. 21- 5202(c), which reads:

"Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally."

Pruitt interprets this language to have required the lesser included instructions he argues for here. In his view, under this subsection of the culpable mental state statute, because the State takes the position that the evidence was factually sufficient to support premeditation and intentional conduct, the same evidence had to be factually sufficient to support reckless conduct. We need not revisit the propriety of previous decisions of a majority of this court that a specific instruction was factually appropriate when there was some evidence to support it. See Plum- mer, 295 Kan. at 162 (standard "'closely akin'" to sufficiency of evidence standard). But see State v. Williams, 308 Kan. 1439, 1463, 430 P.3d 448 (2018) (Rosen, J., concurring) (questioning propriety of applying sufficiency test to lesser included crime instructions, emphasizing some evidence must be enough to "'reasonably justify'" conviction of lesser offense). Nor do we need to parse the language of the statute in this case. Even if we assume district court error in failing to give the two reckless homicide instructions, the error cannot possibly qualify as clear and thus reversible. Laying aside for the moment the two brief segments of Ball- inger's testimony that Pruitt uses to support factual appropriateness, the rest of the evidence in this case is overwhelming that whoever shot Little to death did so by firing a shotgun loaded with triple-aught buck from close range after lying in wait outside Mor- gan's trailer home for about 10 minutes. This makes this case very nearly a law school paradigm for premeditated murder by someone, and we have already referenced the strong evidence that the someone was the defendant. No instruction on reckless second-

VOL. 310 SUPREME COURT OF KANSAS 971

State v. Pruitt degree murder or reckless involuntary manslaughter would have affected the outcome here.

INSTRUCTION REGARDING JURY NULLIFICATION

Pruitt's next challenge on this appeal concerns statements made by the trial judge in instructions before voir dire, introductory instructions before the State opened its case in chief, and at the conclusion of trial. These statements, Pruitt asserts, "undercut the jury's inherent right to nullification." We apply the same four-step analysis to this jury instruction challenge that we set forth above. To recap Pruitt's bothers on this nullification point, the district judge told prospective jurors before voir dire that he would instruct the eventual jury on the law of the case and "[s]uch law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be." In introductory instructions after the jury was seated, the judge said, "At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict." In final jury instructions given at the close of the evidence, the judge gave PIK Crim. 4th 50.040 (2012), which said, "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them." Boothby held that a jury instruction saying, "'Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions,' is legally correct and does not prevent a jury from exercising its power of nullification." 310 Kan. 619, Syl. ¶ 3. The same instruction was given in this case, and it is not among those challenged by Pruitt. On the instructions he does challenge, Pruitt relies on arguments similar to those ad- vanced by the defense in Boothby. He asserts that the three instructions in issue essentially directed a verdict to convict. As alluded to in connection with Pruitt's related prosecutorial error issue above, we stressed in Boothby that there is no "right" to jury nullification. Boothby, 310 Kan. at 630. And the jury's power to nullify need not be emphasized or even spelled out explicitly. See Smith-Parker, 301 Kan. at 164. The danger to be

972 SUPREME COURT OF KANSAS VOL. 310

State v. Pruitt avoided in jury instructions is directing a verdict, a danger the Smith-Parker trial judge's reasonable doubt instruction telling the jury it "will enter a verdict of guilty" did not do enough to avoid. (Emphasis added.) See 301 Kan. at 164. The same concern was not present in Boothby, see 310 Kan. at 630-31, and it is not present here. The three instructions Pruitt challenges generally informed the jury how it would proceed in resolving the issues in the case; they reinforce the jury members' oaths; they did not tell the jury that it "must" or "will" enter any particular verdict. Pruitt's challenge to these jury instructions is without merit.

MOTION FOR NEW TRIAL

Pruitt also challenges the district judge's denial of his motion for new trial based on his daughter's testimony that she saw a juror "nodding out for hours at a time." We generally review a denial of a motion for new trial for an abuse of discretion. State v. Phillips, 309 Kan. 475, 477, 437 P.3d 961 (2019). For issues of juror misconduct, however, an appellate court applies a bifurcated review.

"When considering whether a new trial is warranted based on juror misconduct, the trial court first considers whether there was a fundamental failure in the proceeding. If a fundamental failure did occur, the trial court moves to the second step and considers whether the party benefitting from the failure has shown the trial can continue without an injustice, meaning the party has shown beyond a reasonable doubt that the failure did not affect the outcome of the trial. An appellate court reviews the trial court's decision in two parts. It reviews the conclusion on whether a fundamental failure occurred for an abuse of discretion. As for the second question—whether any failure resulted in injustice—an appellate court does not review the district court's decision for abuse of discretion but considers the entire record and performs its own constitutional harmless error review." State v. Jenkins, 308 Kan. 545, Syl. ¶ 3, 422 P.3d 72 (2018).

A district judge may abuse his or her discretion if a decision is based on an error of law; based on an error of fact; or is otherwise arbitrary, fanciful, or unreasonable. State v. Gonzalez-Sandoval, 309 Kan. 113, 126-27, 431 P.3d 850 (2018). This court has addressed the issue of sleeping or inattentive jurors on multiple occasions and has "routinely held that the purported sleeping of a juror did not warrant a new trial." State v.

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State v. Pruitt

Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014) (listing cases). In Armstrong, defense counsel asked to approach the bench during the State's examination of a witness and informed the judge that he believed one of the jurors was falling asleep. The judge thanked counsel and asked the jury to take a break to stretch. After a second instance of alleged juror misconduct, defense counsel asked for a mistrial. The district judge denied the motion, noting that the issue of the "drowsy juror" had been addressed in a timely manner and "that the juror had been struggling but did not actually nod off." 299 Kan. at 440-41. This court upheld the denial: "[T]here [was] no basis to conclude the trial court erred in finding there was not a fundamental failure in the proceeding because of juror inattentiveness." 299 Kan. at 442. In other instances, the court has acknowledged, "if sufficiently severe," juror inattentiveness could serve as the basis for a mistrial. 299 Kan. at 442; see also 59 A.L.R.5th 1, §2[a] ("Certainly, a juror who has not heard all the evidence in a case or the court's instructions as to applicable principles of law is grossly unqualified to render a verdict."). The Armstrong court compared the facts before it to those in State v. Kirby, 272 Kan. 1170, 1196-98, 39 P.3d 1 (2002),

"where the inattentiveness of two jurors was brought to the attention of the trial court. In addressing the issue, the judge stated, '"[I]t did appear that [the juror] may have nodded off for a moment, and I think we took that appropriate action."' This court held that the trial court did not abuse its discretion in denying the defendant's motion for a new trial because there was no statement by the juror that he did not hear testimony, the trial court kept a close eye on the juror and took a recess when it appeared that the juror was dozing off, and the length of time the juror dozed was momentary and isolated. 272 Kan. at 1197-98.

"Similarly, in this case, although defense counsel stated he 'thought' he saw a juror falling asleep, the judge stated, 'I think she was struggling a bit, but I don't know that I ever saw her really nod off.' Also, there was no evidence the juror did not hear testimony. Further, the trial court took immediate action, and there is nothing in the record to indicate any other incidents during the long trial. Fi- nally, if the juror missed any testimony at all, it was testimony regarding the general procedures used by the fire and tool mark expert and was not specific to the evidence in this case. The trial court took steps to assure the juror was attentive before the expert began to testify about his testing or conclusions regarding the evidence gathered at the scene of [the] shooting." Armstrong, 299 Kan. at 443.

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State v. Pruitt

The district judge in this case found no misconduct and thus no fundamental failure of the proceedings necessitating a new trial. We cannot hold that this constituted an abuse of discretion. The judge was able to observe Pruitt's daughter as she testified and evidently made a negative credibility judgment; this is not particularly surprising, given her inability to identify the juror and the potential for bias in favor of her father. The judge also made a careful record of other, unrelated players' recollections, including his court reporter's memory of a single incident early in the trial when she told him about a jury member struggling to stay awake. The court reporter also recalled that she had alerted the judge to the issue and been told that he would watch that juror. At the hearing on the motion for new trial, the judge noted that he had not personally witnessed or detected any "inattentiveness" among the jurors and "never detected that someone appeared to be asleep or unconscious." On this record, we hold that the district judge did not abuse his discretion in determining that there was no juror misconduct constituting a fundamental failure of the proceedings.

CUMULATIVE ERROR

Cumulative trial errors may require reversal if, under the totality of the circumstances, the errors substantially prejudiced the defendant and resulted in an unfair trial. If there is no error or only a single error, cumulative error cannot supply a basis for reversal. See State v. Love, 305 Kan. 716, 737, 387 P.3d 820 (2017). This opinion has identified one instance of prosecutorial error; it has assumed error in the failure to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter. The prosecutor's improper expression of personal opinion that he thought the identity of the gun had been resolved was a discrete error that in no way compounded the instructional errors. See James, 309 Kan. at 1311. In light of the strength of the evidence produced by the State, the errors did not cumulatively prejudice Pruitt, and they did not deprive him of a fair trial.

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State v. Pruitt

CONCLUSION

For all the reasons discussed above, we affirm the judgment of the district court.

1 JEFFREY E. GOERING, District Judge, assigned.

1REPORTER'S NOTE: District Judge Goering was appointed to hear case No. 118,448 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

976 SUPREME COURT OF KANSAS VOL. 310

GFTLenexa, LLC v. City of Lenexa

No. 119,278

GFTLENEXA, LLC, Appellant, v. CITY OF LENEXA, Appellee.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Supreme Court Has Jurisdiction under Kansas Consti- tution. Under the Kansas Constitution, the Supreme Court shall have such appellate jurisdiction as provided by law.

2. EMINENT DOMAIN—Statute Allows Direct Appeal to Supreme Court if Initiated by Condemning Authority. K.S.A. 2018 Supp. 26-504 governs appeals in eminent domain cases and allows appeals directly to the Supreme Court when the plaintiff has power of eminent domain.

3. APPELLATE PROCEDURE—Inverse Condemnation Appeals Initiated in Court of Appeals. Jurisdiction over appeals from final dispositions in inverse condemnation actions lies with the Court of Appeals.

4. SAME—Failure to File Appeal in Proper Appellate Court Not Grounds for Dismissal. Failure to docket an appeal in the proper appellate court is not, on its own, grounds for dismissing an appeal.

5. CONTRACTS—Requirements of Valid Contracts. Competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy and, in the absence of fraud, mistake, or duress, a party that has fairly and voluntarily entered into such a contract is bound thereby, even if it was unwise or disadvantageous to that party.

6. EMINENT DOMAIN—Condemning Authority's Duty. In an eminent domain proceeding, the duty of the condemning authority is to make payment for the property that it has taken, not to account for the diversity of interests in the property.

7. SAME—Condemning Authority's Duty—Undivided Fee Rule. Under the undivided fee rule, the condemning authority treats all the various interest holders in a unit of property as a single, undivided interest when the compensatory value is appraised.

8. CONTRACTS—Privity of Contract—Relationship Existing between Two or More Contracting Parties. Privity of contract is that connection or relationship existing between two or more contracting parties. Privity between the plaintiff and the defendant with respect to the subject of the lawsuit is essential to the maintenance of any action on a contract.

Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed December 6, 2019. Affirmed.

VOL. 310 SUPREME COURT OF KANSAS 977

GFTLenexa, LLC v. City of Lenexa

Lumen N. Mulligan, of DRZ Law, LLC, of Leawood, argued the cause, and Daniel R. Zmijewski and Christopher Dove, of the same firm, were with him on the brief for appellant.

Timothy P. Orrick, of Orrick & Erskine, LLP, of Overland Park, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: GFTLenexa, LLC, appeals directly to this court from a district court judgment denying it relief in an action based on contractual relationships but styled as an inverse condemnation proceeding. GFTLenexa alleges that a condemnation through an eminent domain action eventually resulted in GFTLenexa losing a constitutionally protected property interest without fair compensation. We find the district court's reasoning persuasive and affirm its judgment. We also clarify procedural rules for taking appeals in inverse condemnation actions.

FACTS

The facts giving rise to this appeal are complicated but do not require a lengthy recitation. Oak Park Commons, L.P., (which is not a party to the litigation) owns commercial property in Lenexa, Kansas. In 2007, Oak Park Commons entered into a ground lease agreement with Centres Midwest BFS, LLC (which is also not a party to this litigation). Under the agreement, Oak Park agreed to lease the property to Centres Midwest for a 20-year term. In 2008, Centres Midwest entered into a sublease agreement with Bridgestone Retail Operations, LLC (also not a party to this litigation). The sublease authorized Bridgestone to build and operate an 8,000 square foot tire sales center on the property. On January 20, 2010, Centres Midwest assigned its rights and obligations under the lease and sublease agreements to plaintiff GFTLenexa, with the consequence that GFTLenexa became Bridgestone's landlord. The assignment was filed with the John- son County Register of Deeds on January 28, 2010. On October 31, 2013, the City of Lenexa filed a condemnation action naming Oak Park, Firestone Auto Care (a part of Bridge- stone Retail Operations, LLC), and numerous other parties as defendants, but neglecting to include GFTLenexa as a defendant.

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GFTLenexa, LLC v. City of Lenexa

The City sought partial condemnation authority to make improve- ments to 95th Street Parkway. The City sought rights for a permanent public utility easement and a temporary construction easement adjacent to Oak Park's property. On November 21, 2013, Centres Midwest sent GFTLenexa by certified mail a notice of the condemnation action. The district court granted the City's request on November 27, 2013. An appraisal was performed, and, in accordance with the appraisal report, on April 1, 2014, the district court ordered the City to pay Oak Park Commons $285,925 in just compensation for the City's exercise of eminent domain power. Neither GFTLenexa nor Bridgestone sought to intervene to assert an interest in the award, and neither was awarded any compensation. On May 12, 2014, Bridgestone filed a declaratory judgment action against GFTLenexa, claiming it was entitled to a reduced rent because the property had been partially condemned. The district court granted GFTLenexa summary judgment under the theory that GFTLenexa did not receive any proceeds from the condemnation. The Court of Appeals reversed, holding that the plain language of the sublease agreement (which GFTLenexa had assumed in the transfer of rights) required GFTLenexa to propor- tionally reduce the tenant's rent. Bridgestone Retail Operations, LLC v. GFTLenexa, No. 114,113, 2016 WL 758730 (Kan. App. 2016) (unpublished opinion). GFTLenexa did not seek review by this court of that decision. On remand, the district court ordered GFTLenexa to reduce Bridgestone's monthly rent by 14.89% for the duration of the lease and to refund $86,126.60 to Bridgestone for past overpayment of rent. On February 17, 2017, GFTLenexa filed suit against the City, asserting an inverse condemnation action for damage to its intan- gible property rights resulting from the City's condemnation action. The action was predicated on its reduced rental income from Bridgestone because of the contract action that it lost in Bridge- stone Retail Operations. The district court denied summary judgment to GFTLenexa and granted summary judgment to the defendant, City of Lenexa. GFTLenexa took a timely appeal to this court.

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GFTLenexa, LLC v. City of Lenexa

ANALYSIS

Supreme Court Jurisdiction

GFTLenexa took this appeal directly to the Kansas Supreme Court under the theory, as stated in its notice of appeal and dock- eting statement, that this is an appeal in an eminent domain proceeding. We initially consider whether the Supreme Court is the proper tribunal to which an appeal such as this one should be brought. The appellate courts have, in the past, taken inconsistent ap- proaches to appeals from final judgments in inverse condemnation actions. In some instances, the appeals were taken directly to the Court of Appeals, which issued opinions finally disposing of the matters. See, e.g., Isely v. City of Wichita, 38 Kan. App. 2d 1022, 174 P.3d 919, rev. denied 286 Kan. 1178 (2008); Lewis v. Globe Constr. Co., 6 Kan. App. 2d 478, 630 P.2d 179 (1981). In some instances, the appeals were taken to the Court of Appeals, but the Supreme Court implicitly elected to assume jurisdiction by trans- ferring the cases. See, e.g., Frick v. City of Salina, 290 Kan. 869, 877, 235 P.3d 1211 (2010) (appeal transferred from Court of Ap- peals on appellants' motion to transfer under K.S.A. 20-3017); Garrett v. City of Topeka, 259 Kan. 896, 898, 916 P.2d 21 (1996) (appeal transferred from Court of Appeals on court's own motion under K.S.A. 20-3018[c]). In other instances, the Supreme Court has accepted direct appeals in inverse condemnation actions. See, e.g., Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1188, 135 P.3d 1221 (2006), cert. denied 549 U.S. 1265 (2007) (citing K.S.A. 26- 504 as authority for this court's original jurisdiction over inverse condemnation action); Korytkowski v. City of Ottawa, 283 Kan. 122, 152 P.3d 53 (2007) (accepting without discussion jurisdiction over appeal docketed in Supreme Court from judgment in inverse condemnation action). The status quo, in which appellants take their appeals to whichever court they choose, casts a cloud of uncertainty over inverse condemnation appeals. We now seek to clarify the procedures for seeking appellate review in those actions.

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GFTLenexa, LLC v. City of Lenexa

Under the Kansas Constitution, the Supreme Court has "such appellate jurisdiction as may be provided by law." Kansas Consti- tution, Article 3, § 3. Appellate courts exercise unlimited review over jurisdictional issues and have a duty to question jurisdiction on their own initiative. Wiechman v. Huddleston, 304 Kan. 80, 84, 370 P.3d 1194 (2016). Ordinarily, eminent domain proceedings are initiated by a governmental condemning authority for the purpose of acquiring an interest in private real property. Such actions are governed by statute, K.S.A. 26-501 et seq. Inverse condemnation proceedings, on the other hand, are usually initiated by holders of private property interests. Such actions assert that governmental action has effectively reduced or evaporated private property interests without formally instituting eminent domain procedures. These actions are grounded in the Fifth Amendment Takings Clause and are not creatures of statute. K.S.A. 2018 Supp. 26-504 governs appeals in eminent domain cases. It allows for appeals directly to the Supreme Court in actions initiated by the condemning authority:

"If the judge to whom the proceeding has been assigned finds from the petition: (1) The plaintiff has the power of eminent domain; and (2) the taking is necessary to the lawful corporate purposes of the plaintiff, . . . the judge shall enter an order appointing three disinterested residents of the county in which the petition is filed, . . . to determine the damages and compensation to the interested parties resulting from the taking. . . . The granting of an order determining that the plaintiff has the power of eminent domain and that the taking is necessary to the lawful corporate purposes of the plaintiff shall not be considered a final order for the purpose of appeal to the supreme court, but an order denying the petition shall be considered such a final order.

"Appeals to the supreme court may be taken from any final order under the provisions of this act. Such appeals shall be prosecuted in like manner as other appeals and shall take precedence over other cases, except cases of a like character and other cases in which preference is granted by statute."

Appeals directly to the Supreme Court are thus authorized when the plaintiff has the power of eminent domain. No such statutory provision exists for direct appeals from nonstatutory causes of action seeking compensation from the government. K.S.A. 60-2101(a) provides that the Court of Appeals has "jurisdiction to hear appeals from district courts, except in those cases

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GFTLenexa, LLC v. City of Lenexa reviewable by law in the district court and in those cases where a direct appeal to the supreme court is required by law." We therefore conclude that the Court of Appeals properly exercises jurisdiction over appeals from district court orders finally disposing of inverse condemnation claims, whether those appeals are brought by the plaintiff possessing a property interest or by a defendant government entity. Applying this rule to the present case, we decide that GFTLenexa improperly docketed this appeal with the Supreme Court. This is not, however, grounds for dismissing the appeal. See K.S.A. 20-3018(a) ("No case docketed either in the supreme court or the court of appeals shall be dismissed solely for the reason of having been filed in the wrong court . . . ."). We could, of course, now transfer the appeal to the Court of Appeals under K.S.A. 20-3018(a) ("Any case within the jurisdiction of the court of appeals which is erroneously docketed in the supreme court shall be transferred by the supreme court to the court of appeals."). This court has, however, already heard oral argument from the parties, and we conclude that little would be served by compelling them to reargue the case before a different court when this court may exercise jurisdiction over it. This court exercises concurrent jurisdiction with the Court of Appeals over all appeals over which the Court of Appeals has jurisdiction, as well as exclusive jurisdiction over certain appeals— such as eminent domain appeals—as designated by statute. See K.S.A. 60-2101(b) ("The supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court . . . ." [Emphasis added.]). Because we are clarifying the rules for appellate court jurisdiction, we elect to retain jurisdiction in this particular case and will dispose of the matter before us on the merits.

GFTLenexa's Claim Against the City

The district court entered judgment based on competing motions for summary judgment. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and supporting affidavits show that no genuine issue exists as to any material fact and the moving party is entitled

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GFTLenexa, LLC v. City of Lenexa to judgment as a matter of law. The district court must resolve all facts and reasonable inferences drawn from the evidence in favor of the party against whom the ruling sought. When opposing summary judgment, a party must produce evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issue in the case. Appellate courts apply the same rules and, where they find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment is inappropriate. Appellate review of the legal effect of undisputed facts is de novo. See Northern Natural Gas Co. v. ONEOK Field Services Co., 310 Kan. 644, 448 P.3d 383, 388 (2019). Proceeding under the Kansas Eminent Domain Procedure Act, K.S.A. 2018 Supp. 26-501 et seq., the City partially condemned some property. The City did not contest the appraised value and paid the property owner the full appraised amount. GFTLenexa, a sublessee of the property owner, did not contest the eminent domain action and did not seek to intervene to obtain an equitable share of the condemnation proceeds. GFTLenexa also did not pursue compensation from the property owner, perhaps because it had contracted away its indemnification rights. GFTLenexa nevertheless contends that it has been deprived of a property interest without due process and without compensation. The parties agree that the eminent domain petition did not name GFTLenexa as a party having an interest in the subject property. The parties also agree that the property owner, Oak Park, informed GFTLenexa by certified letter that an eminent domain action involving the property had been initiated. As it stated in its petition in the present case, GFTLenexa "chose not to intervene" in the condemnation action. GFTLenexa had actual notice of the eminent domain proceeding and elected not to participate. We do not condone the City's failure to include GFTLenexa in the eminent domain proceeding: governmental entities are not entitled to seize property without notice and without compensation. See Creegan v. State, 305 Kan. 1156, 1170, 391 P.3d 36 (2017); K.S.A. 26-502. Quite to the contrary, notice is an essential element of the process that is due before property may be seized. See, e.g., Board of Reno County Comm'rs v. Akins, 271 Kan. 192,

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GFTLenexa, LLC v. City of Lenexa

196, 21 P.3d 535 (2001). But we do not find that the City's omission of GFTLenexa from the eminent domain proceedings supports GFTLenexa's inverse condemnation action. GFTLenexa argues that intervention was not an option: having been omitted from the original pleadings, it was barred from intervening or asserting a property interest during the original eminent domain proceeding. GFTLenexa claims that its omission as a participant in the eminent domain proceeding made it impossible for it to assert any rights in that action. It cites to State Highway Commission v. Bullard, 208 Kan. 558, 493 P.2d 196 (1972), as holding that a party not served in an eminent domain action is precluded from intervening in the action. This assertion misreads Bullard. In Bullard, a government authority undertook an eminent domain action that included property on which the appellant had a leasehold interest. The condemning authority subsequently removed that particular tract from the property over which it sought to exercise eminent domain. The appellant, no longer a party by right, sought to intervene to assert a claim for compensation for damage to his property interests. This court held that a condemning authority has the statutory right to abandon condemnation as to particular tracts within certain time restrictions, and those with interests in the tracts have no standing to oppose abandoning the condemnation. 208 Kan. at 561. Having no interest in property subject to condemnation, the leaseholder lacked standing to intervene in the condemnation action "under the facts and circumstances." 208 Kan. at 561. The proper recourse in that instance was an action for inverse condemnation. 208 Kan. at 562. The Bullard situation differs from the present case in a significant respect: here, GFTLenexa had an interest in property that was subject to condemnation. It clearly had a legal interest in the property and could have asserted whatever right it wanted to protect by intervening and arguing for a different appraised value or a different apportionment of the award. Unlike the leaseholder in Bullard, GFTLenexa had recourse other than inverse condemnation—it could have, and perhaps should have, sought leave to intervene. Whether intervention would have entitled GFTLenexa to

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GFTLenexa, LLC v. City of Lenexa a share of the award is a question that we need not address; suffice it to say, it appears that, in assuming the terms of the ground lease, GFTLenexa bargained away its right to claim any part of an eminent domain compensation. In City of Roeland Park v. Jasan Trust, 281 Kan. 668, 673-75, 132 P.3d 943 (2006), this court held that parties to leasing relationships may enter into enforceable agreements regarding the dis- tribution of condemnation awards. Discussing the contractual assignment of loss through eminent domain to GFTLenexa, the district court observed that GFTLenexa freely negotiated those terms:

"[O]ne can only presume the risks that were allocated were also contemplated in setting the price or consideration for acquisition. Likewise, when the sublease was drafted contemplating a reduction in rent if a condemnation occurred, one must also presume that provision (i.e., that the sub-Lessor might lose part of its leasehold interest and not be compensated for that loss) had a part in the calculus used by those parties to the sublease in arriving at the rent price in the first instance."

The loss that followed from its contractual rights and obligations did not create for GFTLenexa an equitable right to compensation from a third party.

"American courts have traditionally taken the view that competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy and, in the absence of fraud, mistake, or duress, that a party who has fairly and voluntarily entered into such a contract is bound thereby, notwithstanding it was unwise or disadvantageous to that party." Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 670-71, 876 P.2d 1362 (1994).

By waiting to assert a right impaired by the City's condemnation, GFTLenexa seeks to force the City to pay twice for the same property—once through the eminent domain proceeding and once through the inverse condemnation proceeding. Allowing such a double remedy would violate the undivided fee rule. Under the undivided fee rule, the condemning authority treats all the various interest holders in a unit of property as a single, undivided interest when the compensatory value is appraised. The interest holders may seek adjudication of the allocation of the total compensation in a separate court action. See K.S.A. 26-517. At that time, the condemning authority no longer has a stake in the

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GFTLenexa, LLC v. City of Lenexa proceedings, having paid the full amount of the value diminished by the condemnation:

"'It has long been the rule that where leased property is taken by eminent domain, it is ordinarily valued as though held in a single ownership rather than by separately valuing the interests of the lessor and lessee, and the compensation for the property taken or damaged is apportioned by the district court between the lessor and lessee according to their respective interests. The condemner has no interest in the apportionment proceedings. It has met its obligation when it has paid into court the total amount of the award. (29A C.J.S., Eminent Domain, § 198, p. 873.)'" City of Manhattan v. Kent, 228 Kan. 513, 517, 618 P.2d 1180 (1980) (quoting Phillips Petroleum Co. v. Bradley, 205 Kan. 242, 247, 468 P.2d 95 [1970]).

Thus, in an eminent domain proceeding, the duty of the condemning authority is to make payment for the property that it has taken, not to account for the diversity of interests in the property. The public pays what the land is worth, and the amount to be paid is divided among the various claimants according to the nature of their interests. City of Manhattan, 228 Kan. at 518. GFTLenexa essentially abandoned any claim to compensation when it elected not to intervene in the eminent domain proceeding and made no effort to nullify that proceeding afterwards. It may not later seek greater compensation than the full compensation that the City already paid to the property owner based on an uncontested statutory appraisal. GFTLenexa seeks to make the City liable for revenue it lost under the terms of its lease and sublease agreements, pointing to a clause in the ground lease agreement putatively creating a right of action against the City:

"In the event of any condemnation or conveyance in lieu thereof of the Leased Premises, whether whole or partial, Tenant shall have no claim against Owner or the condemning authority for the value of the unexpired term and Ten- ant shall not (except as otherwise specifically provided in this paragraph) be entitled to any part of the compensation or award . . . PROVIDED, HOWEVER . . . Tenant shall have the right to claim and recover from the condemning authority (but not from Owner) such compensation as may be separately awarded to Tenant in Tenant's own name and right on account of all damages to Tenant's business by reason of the condemnation . . . ." (Emphasis added.)

GFTLenexa pins its case on the theory that it could contractually create a cause of action against a stranger to the contract. GFTLenexa seeks support for this theory in Jasan Trust, pointing

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GFTLenexa, LLC v. City of Lenexa to this court's holding that "parties are free to contract around eminent domain rules." 281 Kan. at 677. This argument misreads Ja- san Trust. Jasan Trust was an eminent domain action in which the various parties, including the City of Roeland Park, were able to assert their interests. Unlike that case, the present case was initiated years after the eminent domain action was completed and the compensation was awarded, paid out, and distributed. Furthermore, in Jasan Trust, the condemning authority was neither an appellant nor an appellee—it was a neutral party. The parties in conflict were the parties whose relationship was contractual, and this court held that parties to a contract are permitted to make enforceable contractual provisions for how condemnation awards are to be distributed among themselves. Jasan Trust does not hold that parties may contractually bind a condemning authority, such as the City, to pay out more than the total appraised value of the condemned property. This court has stated that "[c]ontracting parties are presumed to act for themselves." State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, Syl. ¶ 6, 107 P.3d 1219 (2005). In the absence of a third-party beneficiary, a contract binds only the parties that enter into the contract; it is not enforceable against a third party that did not negotiate the contract, did not accept the terms of the contract, and did not receive any consideration for the contract. See Bodine v. Osage County Rural Water Dist. No. 7, 263 Kan. 418, 428, 949 P.2d 1104 (1997); Earl E. Roher Transfer & Storage Co. v. Hutchinson Water Co., 182 Kan. 546, Syl., 322 P.2d 810 (1958). GFTLenexa seeks to enforce its contract against a party that was not in privity of contract with the parties to the lease and sublease. As this court has held, "Privity of contract is that connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of any action on a contract that there be privity between the plaintiff and the defendant in respect to the matter sued on." (Emphasis added.) Reliance, 278 Kan. 777, Syl. ¶ 4. There was no privity of contract between the City and GFTLenexa, and GFTLenexa is precluded from asserting a right under its contract with Centres Midwest to sue the City

VOL. 310 SUPREME COURT OF KANSAS 987

GFTLenexa, LLC v. City of Lenexa based on a contract clause allowing it to take a separate action against a condemning authority. A party asserting a claim of inverse condemnation must prove not only that the party owns an interest in the real property but that the alleged condemner has taken all or a part of that interest without compensation. Hiji v. City of Garnett, 248 Kan. 1, 9, 804 P.2d 950 (1991). Here, the landowner was compensated. While GFTLenexa tries to argue that it has separate property rights as a lessee and sublessor, the proper venue to assert those rights was in the eminent domain proceeding, even if it could not have successfully asserted them there because it voluntarily surrendered those rights through its contractual obligations.

CONCLUSION

We find no error in the reasoning or conclusions of the district court. The judgment of the district court is affirmed.

JEFFREY E. GOERING, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Goering was appointed to hear case No. 119,278 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court created by the retirement of Justice Lee A. Johnson.

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In re Hawkins

No. 121,064

In the Matter of JOAN M. HAWKINS, Respondent.

___

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—Disbarment. Attorney was disbarred from the practice of law for violations of the Kansas Rules of Profes- sional Conduct governing diligence, safekeeping property, termination of representation, failure to respond and cooperate in disciplinary proceeding, and failure to file motion to withdraw upon suspension.

Original proceeding in discipline. Opinion filed December 6, 2019. Disbarment.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Kimberly L. Knoll, Deputy Disciplinary Administrator, was with him on the formal complaint for the petitioner.

No appearance by respondent.

PER CURIAM: This is an uncontested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Joan M. Hawkins, of Lawrence, an attorney admitted to the practice of law in Kansas in 1999. On August 30, 2018, the office of the Disciplinary Adminis- trator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Re- spondent did not file an answer. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attor- neys on October 2, 2018, at which the respondent did not appear in person or by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 1.15(a) and (b) (2019 Kan. S. Ct. R. 334) (safekeeping property); 1.16(d) (2019 Kan. S. Ct. R. 339) (termination of representation); 8.1(b) (2019 Kan. S. Ct. R. 384) (failure to respond to disciplinary authority); Kansas Supreme Court Rule 207(b) (2019 Kan. S. Ct. R. 252) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 211(b) (2019 Kan. S. Ct. R. 257) (failure to file answer in disciplinary proceeding); and Kansas Supreme Court Rule 218(a) (2019 Kan. S. Ct. R. 268) (failure to file motion to withdraw upon suspension).

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In re Hawkins

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"6. On September 24, 1999, the Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas. On April 15, 2016, the Court suspended the respondent's license to practice law for a period of 18 months for having violated KRPC 1.16 (termination of representation), KRPC 3.2 (expedite litigation), KRPC 3.3 (candor to the tribunal), KRPC 3.4 (fairness to opposing party), KRPC 8.1 (cooperation), and KRPC 8.4 (professional misconduct). The respondent has not sought reinstatement of her license to practice law.

"DA12561

"7. L.M. entered pleas of guilty to two serious felonies. There- after, the court sentenced L.M. to life imprisonment. Later, L.M.'s family retained an attorney to file a motion to set aside the guilty pleas.

"8. Subsequently, the respondent entered her appearance on behalf of L.M. and filed an amended motion to withdraw plea. The court scheduled a three-day hearing on the respondent's motion for August 31, 2015, through September 2, 2015. The respondent represented L.M. at the hearing. Following the hearing, the court set a briefing schedule. The court directed the respondent to file a brief on behalf of L.M. not later than 28 days after the completion of the transcript. The district court provided the state with 28 days to respond and the respondent 14 days to reply.

"9. On October 19, 2015, the court reporter certified the completion of the transcript and a copy of the transcript was delivered to the respondent, making the respondent's brief due on November 16, 2015. The respondent failed to file a brief on behalf of L.M. as ordered by the court. Additionally, the respondent failed to take any additional action on behalf of L.M.

"10. On April 15, 2016, the Kansas Supreme Court suspended the respondent's license to practice law for a period of 18 months. In its opinion, the Court ordered the respondent to comply with Kan. S. Ct. R. 218. Kan. S. Ct. R. 218 requires suspended attorneys to notify clients, opposing counsel, and courts of record, within 14 days, that the attorney's license has been suspended. Kan. S. Ct. R. 218 also requires suspended attorneys to move to withdraw from all pending cases.

"11. In a letter dated April 29, 2016, the respondent notified L.M. that the respondent's license to practice law had been suspended. The respondent, however, did not notify J.K., L.M.'s sister who held a power of attorney for L.M. The respondent failed to file a motion to withdraw from L.M.'s case.

"12. Because the respondent failed to file a brief on behalf of L.M. and complete the representation, J.K. filed a complaint with the disciplinary

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In re Hawkins administrator's office. Members of the disciplinary administrator's office directed the respondent to provide a written response to the complaint. The respondent . . . did not provide a written response to the complaint filed by J.K.

"13. Terry Morgan, special investigator with the disciplinary administrator's office was assigned to investigate the complaint. Mr. Morgan also directed the respondent to provide a written response to the complaint. The respondent failed to do so.

"14. During the investigation, the respondent left a voicemail message for Mr. Morgan, indicating that an attorney from Joseph & Hollander would be representing her. When Mr. Morgan contacted Joseph & Hollander, Mr. Morgan learned that the firm would not be representing the respondent.

"15. The respondent failed to cooperate in the investigation.

"DA12577

"16. The respondent represented C.U. in a divorce proceeding against R.U. The district court entered the decree of divorce on May 15, 2014. A term of the property settlement agreement required R.U. to pay C.U. $32,172.50, to equalize the joint assets. In addition, the parties jointly held Horizon stock. Because the stock remained unsold at the time the district court entered the decree, the district court specifically retained jurisdiction over issues relating to the stock.

"17. On December 3, 2014, the district court entered a nunc pro tunc Journal Entry, correcting a mathematical error which changed the equalization amount R.U. was to pay C.U. to $32,308.00. That same day, R.U. paid C.U. the required equalization amount.

"18. Even though R.U. had already paid the equalization amount, on December 23, 2014, the respondent filed a motion to enforce the terms of the property settlement agreement, seeking to force R.U. to pay C.U. the equalization amount.

"19. In January, 2015, counsel for Horizon notified the parties that Horizon wished to offer stock redemption to R.U. and C.U. Counsel for Horizon requested that C.U. sign a disclaimer of the interest so that the stock could be redeemed. The respondent and C.U. refused to sign the disclaimer because the parties disagreed as to who should bear the tax liability on the redemption.

"20. Without accomplishing the stock redemption, the respondent stopped communicating with counsel for Horizon.

"21. In August, 2015, R.U. listed her real property for sale. A month later, on September 17, 2015, the respondent filed a lien against R.U.'s real property for the equalization payment for an 'uncertain' amount, even though

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In re Hawkins the equalization amount was certain and had already been paid. The respondent failed to notify R.U. or her counsel of the lien.

"22. Without knowing of the lien, R.U. entered a contract for the sale of her real property and scheduled closing for April 7, 2016. One week prior to closing, the title company discovered the lien the respondent filed against R.U.'s real property. The improper lien filed by the respondent frustrated the progress of the sale of the real property.

"23. On April 6, 2016, the respondent informed the title company that the amount of the lien was 'roughly $4,700.' The title company agreed to hold $4,700 in escrow. However, R.U. had already paid the entire amount owed to C.U.

"24. On April 15, 2016, the same day the Supreme Court issued its opinion suspending the respondent's license to practice law, the respondent sent an email message to counsel for R.U. requesting to settle the Horizon stock matter prior to the hearing, scheduled for June 29, 2016.

"25. On May 26, 2016, R.U. filed a complaint against the respondent. The disciplinary administrator directed the respondent to provide a written response to the complaint. The respondent failed to do so. The respondent failed [to] cooperate in the investigation of R.U.'s complaint.

"DA12597

"26. At the time the Supreme Court suspended the respondent's license to practice law in April 2015, the respondent's attorney trust account balance was $37,846.66. After her license to practice law was suspended, the respondent made the following deposits into her attorney trust account:

April 18, 2016 $65.00 April 19, 2016 $3,497.00 April 21, 2016 $500.00 June 1, 2016 $.20 June 1, 2016 $4,918.08 June 21, 2016 $1,532.76 September 1, 2016 $75.00

"27. The respondent used her attorney trust account for purposes in addition to holding client monies.

a. On April 11, 2016, four days before the Kansas Supreme Court suspended the respondent's license to practice law, the respondent transferred funds from her retirement account in the amount of $18,400 from American Funds to her attorney trust account. That same day, the respondent wired $17,100 to the firm representing the respondent in the original disciplinary action, Joseph & Hollander and she returned $1,300 to the American Funds retirement account.

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In re Hawkins

b. On April 13, 2016, April 20, 2016, and September 27, 2016, the respondent paid a credit card bill directly from her attorney trust account.

"28. The respondent's attorney trust account records indicate that she returned unearned fees to her clients beginning April 19, 2016, and continuing through September 22, 2016.

"29. On August 4, 2016, Mary Trece Potter of Intrust Bank wrote to the disciplinary administrator regarding the respondent's operating accounts and attorney trust account. Ms. Potter reported that the bank had 'responded to numerous IRS Summons[es]' and it had 'processed several IRS Levies' on the respondent's law office. The disciplinary administrator's office considered Ms. Potter's letter to be a complaint and investigated the issues raised in Ms. Potter's letter.

"30. The disciplinary administrator's office wrote to the respondent directing her to provide a written response to the complaint filed by Ms. Potter. The respondent did not respond to the complaint filed by Ms. Potter. The respondent did not cooperate in the investigation of Ms. Potter's complaint.

"31. On August 30, 2018, Ms. Knoll filed a formal complaint. The respondent failed to file an answer to the formal complaint.

"Conclusions of Law

"32. The respondent failed to appear at the hearing on the formal complaint. It is appropriate to proceed to hearing when a respondent fails to appear only if proper service was obtained. Kan. S. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:

'(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney's most recent registration, or at his or her last known office address.

. . . .

'(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.'

In this case, the disciplinary administrator complied with Kan. S. Ct. R. 215(a) by sending a copy of the formal complaint and the notice of hearing, via certified United States mail, postage prepaid, to the address designated in the respondent's most recent registration. Additionally, the disciplinary administrator sent a copy of the formal complaint and the notice of hearing to the respondent's current residential address. The hearing panel concludes that the respondent was afforded the notice that the Kansas Supreme Court Rules require and more.

"33. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3 (diligence), KRPC 1.15

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In re Hawkins

(safeguarding property), KRPC 1.16 (termination of representation), KRPC 8.1 (cooperation), Kan. S. Ct. R. 207 (cooperation), Kan. S. Ct. R. 211 (duty to answer), and Kan. S. Ct. R. 218 (procedure following suspension), as detailed below.

"KRPC 1.3

"34. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to dili- gently and promptly represent L.M. by failing to file a brief as directed by the district court. Because the respondent failed to act with reasonable diligence and promptness in representing her client, the hearing panel concludes that the respondent violated KRPC 1.3.

"KRPC 1.15

"35. Lawyers must properly safeguard their clients' property. KRPC 1.15 provides, in pertinent part:

'(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

'(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.'

"36. The record establishes that the respondent commingled her property with her client's property. This is evidenced by the respondent making a deposit from her retirement account into her attorney trust account, by the respondent paying her attorney from her attorney trust account, and by the respondent paying credit card bills from her attorney trust account. Because the respondent failed to hold client property separate from her own property, the respondent violated KRPC 1.15(a).

"37. In this case, the respondent made several deposits into her attorney trust account after the Supreme Court suspended the respondent's license to practice law. Because the respondent did not participate in the investigation or prosecution of this case, the hearing panel does not have an explanation for these deposits. The respondent may have been slow to deposit client funds, the respondent may have continued to practice law after the court suspended her

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In re Hawkins license to practice law and the deposits represented payments for the unauthor- ized practice of law, the respondent may have been depositing her own money to cover for money which had been inappropriately taken on earlier occasions, etc. Even though the hearing panel does not know why the respondent made these deposits, the hearing panel can envision no factual scenario which would justify the respondent making deposits into her attorney trust account after her license to practice law [was] suspended. As such, the hearing panel concludes that the respondent violated KRPC 1.15(a).

"38. There is no evidence to suggest that the respondent con- verted funds in her attorney trust account to her own use, as the record indicates the respondent eventually returned the funds to her clients. However, the record does establish that the respondent failed to promptly return the funds to her clients. The respondent did not refund some client money until late September 2016. Because the respondent failed to promptly return the funds to her clients, the hearing panel concludes that the respondent also violated KRPC 1.15(b).

"KRPC 1.16

"39. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:

'Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.'

After representing L.M. in the three-day hearing to withdraw L.M.'s guilty pleas, the respondent failed to file a brief as required by the district court. Following the hearing, the respondent took no additional action on behalf of L.M. to protect L.M.'s interests. The hearing panel concludes that the respondent violated KRPC 1.16(d).

"KRPC 8.1 and Kan. S. Ct. R. 207(b)

"40. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. S. Ct. R. 207(b) provide the requirements in this regard. '[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority . . . .' KRPC 8.1(b).

'It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Discipli- nary Administrator any information he or she may have affecting such matters.'

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Kan. S. Ct. R. 207(b). The respondent knew that she was required to forward a written response to the initial complaints—she had been repeatedly instructed to do so in writing by members of the disciplinary administrator's office. Because the respondent knowingly failed to provide written responses to the three complaints, the hearing panel concludes that the respondent violated KRPC 8.1(b) and Kan. S. Ct. R. 207(b).

"Kan. S. Ct. R. 211(b)

"41. The Kansas Supreme Court Rules requires an attorney to file an answer to the formal complaint. Kan. S. Ct. R. 211(b) provides:

'The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.'

The respondent violated Kan. S. Ct. R. 211(b) by failing to file an answer to the formal complaint. Accordingly, the hearing panel concludes that the respondent violated Kan. S. Ct. R. 211(b).

"Kan. S. Ct. R. 218

"42. Following an order of suspension or disbarment, the disciplined attorney must take certain steps under the Kansas Supreme Court Rules. Kan. S. Ct. R. 218 delineates an attorney's obligations:

'(a) Attorney's Duty. When the Supreme Court issues an order or opinion suspending or disbarring an attorney or striking the attorney's name from the roll of attorneys, the attorney must, within 14 days of the order or opinion:

(1) notify each client, in writing, that the attorney is suspended, disbarred, or is no longer authorized to practice law and the client should obtain new counsel;

(2) notify all opposing counsel, in writing, that the attorney is suspended, disbarred, or is no longer authorized to practice law;

(3) notify all courts where the attorney is counsel of record and the chief judge of the district in which the attorney resides, in writing, that the attorney is suspended, disbarred, or is no longer authorized to practice law;

(4) file a motion to withdraw in each case in which the attorney is counsel of record; and

(5) notify each jurisdiction, in writing, where the attorney is or has been authorized to practice law that the attorney is suspended, disbarred, or is no longer authorized to practice law.'

The respondent notified L.M. that she was no longer able to represent him. There is also some evidence that the respondent notified C.U. that she was unable to continue to represent him. (Whether the respondent notified opposing counsel

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In re Hawkins and the courts that her license was suspended and that she was no longer able to practice law is unclear.) However, the respondent failed to file a motion to withdraw from her representation of L.M. as required by Kan. S. Ct. R. 218(a)(4). According[ly], the hearing panel concludes that the respondent violated Kan. S. Ct. R. 218(a)(4) by failing to file a motion to withdraw from her representation of L.M.

"American Bar Association Standards for Imposing Lawyer Sanctions

"43. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.

"44. Duty Violated. The respondent violated her duty to her clients to provide diligent representation. The respondent also violated her duty to her clients to properly safeguard client property. Finally, the respondent violated her duty to the legal profession to cooperate in disciplinary investigations and comply with court rules.

"45. Mental State. The respondent knowingly and intentionally violated her duties.

"46. Injury. As a result of the respondent's misconduct, the respondent caused actual injury to her clients and the legal profession.

"47. Aggravating and Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:

a. Prior Disciplinary Offenses. The respondent has been previously disciplined on two occasions.

(1) On June 1, 2012, the respondent entered into the attorney diversion program, under Kan. Sup. Ct. R. 203(d), for violations of KRPC 1.3 (diligence) and KRPC 1.4 (communication).

(2) On April 15, 2016, the Supreme Court suspended the respondent's license to practice law for a period of 18 months for having violated KRPC 1.16 (termination of representation), KRPC 3.2 (expedite litigation), KRPC 3.3 (candor to the tribunal), KRPC 3.4 (fairness to opposing party), KRPC 8.1 (cooperation), and KRPC 8.4 (professional misconduct). The respondent has not sought reinstatement of her license to practice law.

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b. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.3 (diligence), KRPC 1.15 (safeguarding property), KRPC 1.16 (termination of representation), KRPC 8.1 (cooperation), Kan. S. Ct. R. 207 (cooperation), Kan. S. Ct. R. 211(b) (duty to answer), and Kan. S. Ct. R. 218(a) (notice following suspension or disbarment). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.

c. Bad Faith Obstruction of the Disciplinary Proceeding by In- tentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The respondent failed to provide written responses to the complaints, the respondent failed to file an answer to the formal complaint, and the respondent failed to appear at the hearing on the formal complaint. The respondent's failure to participate in the disciplinary investigation and proceeding amounts to bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules and orders of the disciplinary process.

d. Vulnerability of Victim. L.M. and R.U. were vulnerable to the respondent's misconduct.

e. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1999. At the time of the misconduct, the respondent had been practicing law for approximately 17 years.

"48. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. The record before the hearing panel is void of evidence in mitigation of the respondent's misconduct.

"49. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:

'4.12 Suspension is generally appropriate when a lawyer knows or should know that [the lawyer] is dealing improperly with client property and causes injury or potential injury to a client.

'4.41 Disbarment is generally appropriate when:

(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or

(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

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'7.1 Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

'7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.

'8.1 Disbarment is generally appropriate when a lawyer:

(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or

(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.'

"Recommendation of the Deputy Disciplinary Administrator

"50. Because the respondent failed to respond in the disciplinary investigation and because the respondent failed to appear at the hearing on the formal complaint, Ms. Knoll argued that the 'bare minimum' discipline should be indefinite suspension from the practice of law. Ms. Knoll further suggested that the appropriate discipline is disbarment.

"Recommendation of the Hearing Panel

"51. Based upon the findings of fact, conclusions of law, the Standards listed above, and the respondent's failure to participate in the disciplinary investigation and proceeding, the hearing panel unanimously recommends that the respondent be disbarred.

"52. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Fos- ter, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court

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In re Hawkins

"The panel did find in its final hearing report that adequate notice was given to the respondent pursuant to Supreme Court Rule 215. . . . The Clerk's office, pursuant to Supreme Court Rule 212(c), sent out a copy of the final hearing report and the table of contents to the respondent's residence and to her last registered address, office address, by certified mail. Numerous attempts were made to serve her at her office and at her house, and they were never claimed; so those came back to the Clerk's office in April 2019. Then by certified mail in June of 2019, the Clerk sent a certificate advising the respondent that this case was going to proceed, that no exceptions had been taken to the Final Hearing Report. That again was sent certified mail to . . . respondent's office and to her residence. It came back unclaimed. And then finally in September of 2019, by certified mail, a copy of the Supreme Court docket was sent to her residence. It was apparent at that time that she was no longer occupying her office. . . . It was returned unclaimed to the Clerk's office in October of 2019. And finally, my investigator, Bill Delaney, attempted to deliver a copy to respondent's residence in Lawrence of this Court's docket for this week on Tuesday evening; nobody answered the door. A copy of a letter from me and the Supreme Court docket were left in her mailbox, and we've had no response to that."

We find that Respondent was given adequate notice of the formal complaint, to which she did not file an answer. We further find that respondent was given adequate notice of the hearing before the panel for which she did not appear in person or by counsel. Respondent filed no exceptions to the panel's final hearing report. With no exceptions before us, the panel's findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2019 Kan. S. Ct. R. 261). Furthermore, the evidence before the panel establishes by clear and convincing evidence the charged misconduct in violation of KRPC 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 1.15(a) and (b) (2019 Kan. S. Ct. R. 334) (safekeeping property); 1.16(d) (2019 Kan. S. Ct. R. 339) (termination of representation); 8.1(b) (2019 Kan. S. Ct. R. 384) (failure to respond to disciplinary authority); Kansas Supreme Court Rule 207(b) (2019 Kan. S. Ct. R.

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252) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 211(b) (2019 Kan. S. Ct. R. 257) (failure to file answer in disciplinary proceeding); and Kansas Supreme Court Rule 218(a) (2019 Kan. S. Ct. R. 268) (failure to file motion to withdraw upon suspension). The findings and evidence support the panel's conclusions of law. We therefore adopt the panel's findings and conclusions. The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the office of the Disciplinary Administrator recommended that the respondent be disbarred. The hearing panel unanimously recommended that the respondent be disbarred. Respondent did not appear at this court's hearing, either in person or by counsel. There, the Disciplinary Administrator continued to recommend that the respondent be disbarred. We agree with the recommendation of both the Disciplinary Administrator and the unanimous panel. As a result, we hold that respondent is to be disbarred from the practice of law in the state of Kansas.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Joan M. Hawkins be and she is hereby disbarred in accordance with Supreme Court Rule 203(a)(1) (2019 Kan. S. Ct. R. 240), effective upon the date of the filing of this opinion.

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports.

MICHAEL J. MALONE, District Judge Retired, assigned.1

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 121,064 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court created by the retirement of Justice Johnson.

VOL. 310 SUPREME COURT OF KANSAS 1001

In re Delaney

No. 121,208

In the Matter of ANDREW M. DELANEY, Respondent.

___

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—One-year Suspension Stayed for Additional Extended Probation Period of Two Years. Attorney who was under ongoing probation from a previous disciplinary action, was disciplined for failing to provide competent representation and failing to avoid conflicts of interest in two separate proceedings. Attorney is suspended for one-year; however the suspension is stayed for an additional extended probation period of two years.

Original proceeding in discipline. Opinion filed December 6, 2019. One- year suspension, stayed during an additional extended probation period of two years.

Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

J. David Farris, of Farris and Fresh Law Offices, of Atchison, argued the cause, and Andrew M. Delaney, respondent, argued the cause pro se.

PER CURIAM: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Andrew M. Delaney, of Hiawatha, an attorney admitted to the practice of law in Kansas in 2002. On October 23, 2018, the office of the Disciplinary Adminis- trator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On November 12, 2018, the respondent filed an answer to the complaint; on December 17, 2018, respondent filed a proposed probation plan. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 9, 2019, where the respondent was personally present and was represented by counsel. The hearing panel determined the respondent violated KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 1.4(a) (2019 Kan. S. Ct. R. 299) (communication); 1.7(a) (2019 Kan. S. Ct. R. 308) (conflict of interest).

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Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact

. . . .

"Prior Discipline

"8. On November 26, 2014, the Supreme Court entered an order suspending the respondent's license to practice law for a period of six months having violated KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 1.8 (conflict of interest), KRPC 3.2 (expediting litigation), KRPC 8.1 (cooperation), and Kan. S. Ct. R. 207 (cooperation). The Supreme Court suspended the imposition of discipline and placed the respondent on probation for a period of two years. The probation plan included a term that required the respondent to refrain from violating the Kansas Rules of Professional Conduct. In re Delaney, 300 Kan. 1090, 1101, 338 P.3d 11 (2014). Even though more than two years has passed, the respondent remains on probation because the respondent did not seek release from probation. See Rule 211(g)(8).

"DA12721

"9. On November 14, 2014, A.Y. retained the respondent to represent her in a divorce action filed in Brown County District Court, case number 14-DM-179. As part of the divorce case, A.Y. wanted the court to enter an order that she would not be responsible for debt of her estranged husband's vehicle.

"10. On September 28, 2015, the court conducted a trial in the divorce case. A.Y. testified that she wanted her name removed from the vehicle's title, so she would not be responsible for the associated debt. The court awarded the vehicle to A.Y.'s ex-husband, ordered that the ex-husband be responsible for outstanding debt owed on the vehicle, and ordered that A.Y.'s ex-husband hold A.Y. harmless from the collection of any debt associated with the vehicle. The bank who held the note on the vehicle was not obligated to refrain from collecting the debt associated with the vehicle from A.Y. Thus, A.Y. remained responsible for the debt associated with her ex-husband's vehicle, subject to indemnification by her ex-husband under the court's order.

"11. The court filed the journal entry of divorce on October 21, 2015. Shortly thereafter, A.Y. began receiving notices and phone calls regarding the vehicle's insurance as well as past due payments owed on the vehicle. Begin- ning November 2, 2015, A.Y. sent the respondent multiple email messages, in- forming him that her ex-husband was not paying bills associated with the vehicle. A.Y. requested that the respondent obtain a court date so the matter could be resolved by the court. The respondent did not reply to A.Y.'s messages.

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"12. On February 24, 2016, the respondent met with A.Y to discuss her options to resolve her problem. The respondent agreed to attempt to resolve the problem by contacting opposing counsel.

"13. After speaking to opposing counsel by telephone, on March 18, 2016, the respondent sent him a letter, requesting that A.Y.'s ex-husband seek to have her name removed from any promissory note or loan on the vehicle. The respondent specifically advised opposing counsel that the matter needed to be resolved within the next 10 days or 'my office has been authorized to pursue contempt proceedings in order to obtain satisfaction.' A.Y.'s ex-husband did not take the requested action.

"14. A.Y. continued to send the respondent email messages seeking a resolution of her problem. The respondent did not reply to many of A.Y.'s messages.

"15. On September 7, 2016, the respondent contacted the creditor and advised the creditor of the contents of the journal entry. The respondent requested that the creditor remove A.Y.'s name from the note. The creditor refused to remove A.Y.'s name from the note.

"16. On September 20, 2016, the respondent met with A.Y. She executed an affidavit in support of a motion to request a citation in contempt based on the ex-husband's failure to remove A.Y.'s name from the truck title and/or loan documents. The respondent did not have an address for the ex-husband. While the respondent alleges that he instructed A.Y. to provide him with her ex-husband's current address at that time, A.Y. expressly denies that the respondent made that request at that time. The hearing panel is unable to determine, from the record before it, whether the respondent requested that A.Y. provide him with her ex-husband's address at that time.

"17. On November 9, 2016, A.Y. sent an email message to the respondent, informed the respondent that she wanted to have a hearing as soon as possible, and stated that because her ex-husband was late on the vehicle payments that she was unable to obtain a car loan. The respondent did not respond to A.Y.'s email message.

"18. On December 10, 2016, A.Y. again sent an email message to the respondent and asked when they would be going to court. The respondent did not reply to A.Y.'s December 10, 2016, email message.

"19. On December 27, 2016, the disciplinary administrator received a complaint filed by A.Y. against the respondent. A.Y. complained of the respondent's lack of diligence and communication.

"20. On December 29, 2016, the disciplinary administrator sent the respondent a copy of A.Y.'s complaint and informed the respondent that the complaint had been docketed for investigation.

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"21. Prior to receiving a copy of the complaint, on January 3, 2017, the respondent sent A.Y. an email advising her that he had a request to hold A.Y.'s ex-husband in contempt ready to file, but that before he could file the request, he needed to have A.Y.'s ex-husband's address. That same day, A.Y. replied to respondent's email, providing her ex-husband's work address to the respondent. The respondent did not file the request with the court to hold A.Y.'s husband in contempt.

"22. On January 5, 2017, the respondent sent a written response to the complaint filed by A.Y. to the disciplinary administrator's office.

"23. On January 24, 2017, the respondent filed a motion to withdraw from his representation of A.Y., alleging a break-down in the attorney-client relationship. That same day, the respondent wrote to A.Y., explained that he was withdrawing from the representation, and provided her with a copy of the draft motion for contempt and affidavit of contempt. The motion to withdraw was granted on February 7, 2017.

"DA12987

"24. Since 2008, the respondent has served as the Kickapoo tribe's sole public defender and legal aid attorney.

"25. S.R., the Kickapoo tribe's fire chief, recruited A.N., a volunteer firefighter, and L.R. a juvenile volunteer firefighter to set fires on the Kicka- poo reservation so that the tribe could seek reimbursement from the Bureau of Indian Affairs for the costs associated with putting out the fires. Between July 7, 2015 and November 4, 2015, L.R. and A.N. intentionally set fires on the Kicka- poo reservation.

"26. On November 14 and 15, 2015, members of the Kickapoo tribal law enforcement spoke to L.R., a 17 year-old volunteer firefighter with the Kickapoo Tribal Volunteer Fire Department. During the law enforcement interview, L.R. admitted his involvement in setting the fires. L.R. also disclosed S.R. and A.N.'s involvement in setting the fires.

"27. On November 19, 2015, L.R. and his parents met with the respondent and explained L.R.'s involvement in the fires. L.R. and his parents authorized the respondent to contact the tribal prosecutor, Brad Lippert, to see if the matter could be quickly resolved with a plea agreement. During the Novem- ber 19, 2015, meeting, the respondent did not ask L.R. the names of the other individuals involved in setting the fires. During that meeting, the underlying facts of the case were not discussed in detail.

"28. On November 23, 2015, the respondent advised Mr. Lippert that L.R. was interested in resolving any potential charges arising from the arson investigation through a plea agreement. Mr. Lippert advised the respondent that if L.R. made a complete and truthful statement to tribal authorities about his involvement in the fires, Mr. Lippert would recommend probation.

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In re Delaney

"29. The respondent relayed Mr. Lippert's offer to L.R.'s mother. L.R.'s mother told the respondent that they would contact the tribal police department so that L.R. could make a complete and truthful statement to tribal authorities.

"30. On March 28, 2016, L.R. was charged as a juvenile in the tribal court with arson in the second degree, larceny, criminal conspiracy to commit arson in the second degree, and criminal conspiracy to commit larceny. The petition listed S.R. as a possible witness.

"31. The next day, on March 29, 2016, A.N. was charged in tribal court with arson in the second degree, larceny, criminal conspiracy to commit arson in the second degree, and criminal conspiracy to commit larceny. The complaint listed L.R. and S.R. as witnesses. Also on March 29, 2016, S.R. was charged in tribal court with criminal conspiracy to commit arson in the second degree, larceny, and criminal conspiracy to commit larceny. The complaint listed L.R. and A.N. as witnesses.

"32. On April 4, 2016, L.R.'s mother informed the respondent that a federal investigator wanted to speak to L.R. about his involvement with the fires. The respondent referred L.R.'s mother to Carl Folsom of the federal public defender's office. L.R.'s mother contacted Mr. Folsom, who informed her that L.R. did not financially qualify for services from the federal public defender's office.

"33. On April 6, 2016, L.R.'s mother informed the respondent that Mr. Folsom was unable to represent L.R.

"34. L.R. received a summons to appear in the tribal court on April 26, 2017. L.R.'s mother notified the respondent's office of the summons. The respondent's staff told L.R.'s mother that they should arrive in court early that day so the respondent would have time to discuss the case with them prior to the hearing.

"35. On April 25, 2016, respondent was appointed to represent S.R. and A.N. in the tribal court cases.

"36. On April 26, 2016, the tribal court appointed the respondent to represent L.R. By this time, Mr. Lippert had informed the respondent that if L.R. pled guilty to arson in the second degree, Mr. Lippert would dismiss the remaining charges and recommend probation. L.R. accepted the plea offer.

"37. The respondent did not review any discovery or discuss the facts of the underlying criminal matter with L.R. prior to providing him advice regarding the plea agreement.

"38. On April 26, 2016, Mr. Lippert and the respondent informed the tribal court of their plea agreement. The tribal court accepted L.R.'s plea. The tribal court sentenced L.R. to 12 months of probation and ordered him to make

1006 SUPREME COURT OF KANSAS VOL. 310

In re Delaney restitution for any damages his actions caused. The respondent continued to represent L.R. at subsequent status hearings regarding the amount of restitution to be paid by L.R. "39. Even though he was appointed in April, 2016, the respondent first reviewed A.N.'s and S.R.'s criminal complaints in July 2016. At that time, the respondent realized that the three cases were companion cases.

"40. Mr. Lippert relayed plea offers to the respondent for S.R. and A.N.

a. Mr. Lippert's plea offer to S.R. required S.R. to plead no contest to criminal conspiracy to commit arson and in exchange Mr. Lippert would dismiss the remaining charges and recommend probation.

b. Mr. Lippert's plea offer to A.N. required A.N. to plead no contest to arson in the second degree and in exchange Mr. Lippert would dismiss the remaining charges and recommend probation.

"41. The tribal court scheduled hearings in S.R.'s and A.N.'s cases for July 25, 2016. Prior to the hearing that day, the respondent met with S.R. and A.N.

a. The respondent advised them of a potential conflict of interest. The respondent also relayed Mr. Lippert's plea offers to S.R. and A.N.

b. The respondent informed them both that because he had not received discovery in their cases, he could not discuss the strength of the evidence against them.

c. S.R. and A.N. each expressed that they wanted to accept the plea offers that day. Consequently, S.R. and A.N. entered no contest pleas pursuant to the plea agreements before the tribal court on July 25, 2016. The tribal court scheduled sentencing for September 26, 2016.

d. The respondent did not explain the risks associated with his representation of L.R., S.R., and A.N. Further, the respondent did not obtain consent from L.R., S.R., and A.N. to continue to represent them despite the conflicts of interest.

"42. On September 21, 2016, S.R. and A.N. were charged in federal court with four counts of wire fraud. L.R. was a witness for the prosecution in the criminal case against S.R. and A.N. The federal court appointed Carl Fol- som to represent S.R.

"43. On September 26, 2016, S.R. and A.N. were each sentenced in tribal court to six months in jail. The tribal court suspended the execution of the sentence and placed S.R. and A.N. on probation for one year. A term of probation required both S.R. and A.N. to serve two weekends in jail. The court also ordered S.R. and A.N. to pay restitution, in an amount to be determined at a later date.

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In re Delaney

"44. On May 31, 2017, the federal prosecutor filed a superseding indictment against S.R. and A.N. in the federal criminal case. In the superseding indictment, S.R. was charged with three counts of wire fraud, one count of theft of government property, and four counts of false claims, and A.N. was charged with one count of misprision of felony. "45. On June 13, 2017, A.N. pled guilty to one count of misprision of felony in federal court.

"46. Prior to a July 24, 2017, tribal court hearing, S.R. asked respondent about withdrawing his plea because of the pending federal indictment. The respondent advised S.R. that if he wanted to withdraw his plea, he would need to get new counsel because the respondent would be a witness.

"47. On August 18, 2017, Mr. Folsom filed a motion to suppress the testimony of L.R. in S.R.'s federal case. Mr. Folsom asserted that because the respondent represented both L.R. and S.R. in tribal court, it would be unduly prejudicial for L.R. to testify against S.R. The court heard the motion to suppress on September 19, 2017. The respondent testified at the hearing and acknowledged that his representation of A.N., L.R., and S.R. presented a potential conflict of interest under KRPC 1.7.

"48. On September 25, 2017, the tribal court held a hearing on restitution in both S.R.'s and A.N.'s case. At that time, S.R. requested and was granted a new attorney. The amount of restitution was in dispute because A.N. argued that she should not be responsible for paying for the costs associated with fires which she did [not] set. The conflict between the respondent's three clients regarding restitution is an example of one of the many problems created by the respondent representing three co-defendants.

"49. For a reason unrelated to the respondent's misconduct, on motion by the federal prosecutor, on November 9, 2017, the federal district court dismissed the criminal charges against S.R., without prejudice.

"50. Again, for a reason unrelated to the respondent's misconduct, on November 16, 2017, A.N. filed a motion to withdraw plea of guilty. On De- cember 1, 2017, the court granted A.N.'s motion to withdraw her guilty plea. That same day, the federal prosecutor filed a motion to dismiss the case against A.N. On December 6, 2017, the court granted the motion to dismiss the case against A.N., without prejudice.

"51. On December 8, 2017, the disciplinary administrator received a complaint from Mr. Folsom against the respondent. The respondent provided written responses to the complaint filed by Mr. Folsom.

"Conclusions of Law

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In re Delaney

"52. Based upon the respondent's stipulations as well as the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 1.4 (communication), and KRPC 1.7 (conflict of interest), as detailed below.

"KRPC 1.1

"53. Lawyers must provide competent representation to their clients. KRPC 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The respondent did not provide competent representation to L.R., S.R., and A.N. by failing to learn the facts underlying his clients' criminal charges in tribal court. Because the respondent failed to exercise the necessary thoroughness and preparation in representing his clients, the hearing panel concludes that the respondent violated KRPC 1.1.

"KRPC 1.3

"54. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to dili- gently and promptly represent A.Y. The respondent failed to either take action on behalf of A.Y. to resolve her issue or inform A.Y. that he could not achieve the relief she sought. Thus, the hearing panel concludes that the respondent failed to represent A.Y. with reasonable diligence and promptness, in violation of KRPC 1.3.

"KRPC 1.4

"55. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.' In this case, the respondent violated KRPC 1.4(a) when he failed to respond to many of A.Y.'s email communications. Accord- ingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).

"KRPC 1.7

"56. A lawyer has a concurrent conflict of interest if:

'(1) the representation of one client will be directly adverse to another client; or

'(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.' KRPC 1.7(a).

A lawyer may not represent a client when the lawyer has a concurrent conflict of interest unless the lawyer takes certain steps. See KRPC 1.7(b). Specifically, a lawyer is prohibited from representing a client when there is a concurrent conflict

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In re Delaney of interest unless 'each affected client gives informed consent, confirmed in writing.' KRPC 1.7(b)(4). The respondent failed to properly inform L.R., S.R., and A.N. of the conflict of interest. Further, L.R., S.R., and A.N. did not consent to the respondent's continued representation when concurrent conflicts of interest existed. As such, the hearing panel concludes that the respondent violated KRPC 1.7(a).

"American Bar Association Standards for Imposing Lawyer Sanctions

"57. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.

"58. Duty Violated. The respondent violated his duty to A.Y. to provide prompt and diligent representation and adequate communication. The respondent violated his duty to L.R., S.R., and A.N. to provide thorough representation. The respondent also violated his duty to L.R., S.R., and A.N. to recognize the conflicts of interest and refrain from representation when conflicts of interest existed.

"59. Mental State. The respondent knew or should have known he was violating his duties.

"60. Injury. As a result of the respondent's misconduct, the respondent caused potential injury to his clients and actual injury to the administration of justice.

"Aggravating and Mitigating Factors

"61. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:

a. Prior Disciplinary Offenses. As detailed in paragraph 8 above, in 2014, the respondent was disciplined. As a result of the 2014 attorney disciplinary case, the respondent remains on probation.

b. Pattern of Misconduct. The 2014 attorney disciplinary case involved the same type of misconduct. As a result, the hearing panel concludes that the respondent engaged in a pattern of misconduct.

c. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1 (competence), KRPC 1.3

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(diligence), KRPC 1.4 (communication), and KRPC 1.7 (conflict of interest). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.

"62. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:

a. Absence of a Dishonest or Selfish Motive. The respondent's misconduct was not motivated by dishonesty or selfishness.

b. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. In the 2014 attorney disciplinary case, the respondent's misconduct was mitigated by personal or emotional problems. Specifically, the respondent suffered from depression and the respondent's depression contributed to his misconduct in that case. The respondent continues to suffer from depression and it appears that the respondent's depression may also have contributed to his misconduct regarding A.Y. Further, it appears that the respondent has made significant progress in the treatment of his depression since the 2014 attorney disciplinary case.

c. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the underlying facts as well as the rule violations.

d. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Hiawatha, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation.

e. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.

"63. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:

'4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.

'4.33 Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer's own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.

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In re Delaney

'4.42 Suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or

(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

'4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.'

"Recommendations of the Parties

"64. Ms. Moylan recommended that the respondent be suspended from the practice of law for a period of one year. Ms. Moylan also recommended that the imposition of the suspension be suspended and that the respondent's probation be extended by two years. Finally, Ms. Moylan recommended that the respondent's plan of probation be amended to include that: (1) the respondent maintain a communication log and share the communication log with his practice supervisor on a weekly basis, (2) the respondent refrain from practicing domestic law, (3) the respondent conduct a conflict check before representing clients, and (4) the respondent conduct an audit of all domestic law cases to make sure that he has withdrawn from representation in each case.

"65. Counsel for the respondent joined in the recommendation made by Ms. Moylan.

"Consideration of Probation

"66. When a respondent requests probation, the hearing panel is required to consider Kan. Sup. Ct. R. 211(g)(3), which provides:

'(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:

(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Dis- ciplinary Administrator and each member of the Hearing Panel at least four- teen days prior to the hearing on the Formal Complaint;

(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;

(iii) the misconduct can be corrected by probation; and

(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.'

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"67. The respondent developed a workable, substantial, and detailed plan of probation. The respondent provided a copy of the proposed plan of probation to the disciplinary administrator and each member of the hearing panel at least 14 days prior to the hearing on the formal complaint. The respondent put the proposed plan of probation into effect prior to the hearing on the formal complaint by complying with each of the terms and conditions of the probation plan. The misconduct, in this case, can be corrected by probation. Placing the respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. "Recommendation of the Hearing Panel

"68. Based on the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of one year. The hearing panel also unanimously recommends that the imposition of the discipline be suspended and the respondent's period of probation be extended by two years.

"69. The hearing panel recommends that the respondent's probation be made subject to the following terms and conditions:

a. Practice Limitation. The respondent will not accept any new domestic law cases. The respondent will make arrangements to locate a new attorney for any current clients with domestic law cases. The respondent will conduct a thorough review of his files as well as the records of the district courts where the respondent practices to ensure that he has withdrawn from all domestic law cases.

b. KALAP. The respondent will comply with the terms and conditions of the monitoring agreement. If the monitoring attorney or KALAP determines that the monitoring agreement should be changed or extended, the respondent will consent to the changes or extensions. The respondent will provide the monitoring attorney and KALAP with an appropriate release of information to allow the monitoring attorney and KALAP to provide information to the practice supervisor, the counselor, and the disciplinary administrator. c. Inventory of Cases and Clients. The respondent will maintain an inventory of all open cases and clients. The respondent will update the inventory on a daily basis. The inventory will include the client's name, the client's contact information, the client's goal, the tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending.

d. Client Communication. The respondent will return all telephone calls within 48 business hours. The respondent will respond to all email messages within 48 business hours. The respondent will contact each client by letter at least once every three months regarding the status of the matter. The respondent will maintain a communication log. The respondent will share the communication log with the practice supervisor at the weekly meetings.

e. Practice Supervision. William R. McQuillan will continue to serve as the respondent's practice supervisor. The respondent will provide the

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In re Delaney practice supervisor with an updated copy of the inventory of cases and clients on a monthly basis. The respondent will allow the practice supervisor access to his client files, calendar, and trust account records. The respondent will meet with the practice supervisor once a week. The meetings will be face-to-face or by telephone, in the judgment of the practice supervisor. The respondent will comply with any requests made by the practice supervisor. The practice supervisor will prepare a quarterly report to the disciplinary administrator regarding the respondent's status on probation. The respondent will provide the practice supervisor with an appropriate release of information to allow the practice supervisor to provide such information to the counselor, KALAP, the monitoring attorney, and the disciplinary administrator. The practice supervisor will be acting as an officer and an agent of the court while supervising the probation and monitoring the respondent's legal practice. As supervising attorney, the practice supervisor will be afforded all immunities granted by Kan. Sup. Ct. R. 223 during the course of his supervising activities.

f. Psychological Treatment. The respondent will continue his treatment for depression throughout the period of supervised probation, unless the counselor determines that continued treatment is no longer necessary. The counselor will notify the practice supervisor and the disciplinary administrator in the event that the respondent discontinues treatment against the recommendation of the counselor during the probationary period. The respondent will provide the counselor with an appropriate release of information to allow the counselor to provide such information to the practice supervisor, KALAP, the monitoring attorney, and the disciplinary administrator.

g. Medication. The respondent will make an appointment with his primary care physician or psychiatrist to determine whether the prescription medication plan needs to be adjusted. The respondent will comply with the recommendations made by his primary care physician or psychiatrist.

h. Office Procedures. The respondent will update the written office procedures to address the issues that arose in this case. The respondent will provide the practice supervisor and the disciplinary administrator with a copy of the updated written office procedures as directed by his practice supervisor. The respondent will modify that procedure if directed to do so by the practice supervisor or the disciplinary administrator. The respondent will follow the written office procedures.

i. Calendar. On a weekly basis, the respondent and the supervising attorney will review the respondent's calendar to ensure that appropriate notices have been sent, that the respondent is properly prepared for all events on his schedule, and that all files have been properly updated.

j. Mail. Someone, other than the respondent, should continue to be charged with opening the respondent's mail on a daily basis.

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k. Billing and Fee Agreements. The respondent will continue to review billing procedures with the practice supervisor. The respondent will have a written fee agreement on each case in his inventory.

l. Conflict Check. The respondent will develop a more effective conflict check process to ensure that he does not represent co-defendants or any other clients with conflicts of interest. The new conflict check process must be approved by the supervising attorney.

m. Audits. The practice supervisor will continue to conduct an audit of the respondent's files every six months. If the practice supervisor discov- ers any violations of the Kansas Rules of Professional Conduct, the practice supervisor will include such information in his report. The practice supervisor will provide the disciplinary administrator and the respondent with a copy of each audit report. The respondent will follow all recommendations and correct all deficiencies noted in the practice supervisor's periodic audit reports. At the conclusion of the period of probation, the respondent will submit to the practice supervisor a detailed account of his active files and the practice supervisor will conduct a final audit.

n. Continued Cooperation. The respondent will continue to cooperate with the disciplinary administrator. If the disciplinary administrator requests any additional information, the respondent will timely provide such information.

o. Additional Violations. The respondent will not violate the terms of his probation or the provisions of the Kansas Rules of Professional Con- duct. In the event that the respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the respondent will immediately report such violation to the practice supervisor and the disciplinary administrator. The disciplinary administrator may file a motion to revoke probation with the Supreme Court and the Chairman of the Kansas Board for Discipline of Attorneys. See Kan. S. Ct. R. 211(g)(9). If the respondent's probation is revoked and he is ordered to serve the suspension, the respondent must undergo a reinstatement hearing under Rule 219 prior to reinstatement.

"70. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

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In re Delaney

Rule 211(f) (2019 Kan. S. Ct. R. 257). Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The respondent was given adequate notice of the formal complaint and the amended formal complaint to which he filed an answer. The respondent was also given adequate notice of the hearings before the panel and the hearing before this court. He did not file exceptions to the hearing panel's final hearing report. With no exceptions before us, the panel's findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2019 Kan. S. Ct. R. 261). Furthermore, the facts before the hearing panel establish by clear and convincing evidence the charged misconduct in violation of KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 1.4(a) (2019 Kan. S. Ct. R. 299) (communication); 1.7(a) (2019 Kan. S. Ct. R. 308) (conflict of interest). The evidence also supports the panel's conclusions of law. We therefore adopt the panel's findings and conclusions. The only remaining issue before us is the appropriate discipline for the respondent's violations. At the hearing before this court, the office of the Disciplinary Administrator recommended the same disciplinary sanction as the hearing panel. The hearing panel recommended that the respondent be suspended for a period of one year, that the imposition of such suspension be stayed, and that respondent's period of probation be extended by two years. The panel further recommended a number of actions for respondent during his suspension. The respondent requested probation according to his probation plan. This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f) (2019 Kan. S. Ct. R. 261). Here we note that the respondent developed another workable, substantial, and detailed plan of probation and implemented the proposed plan of probation prior to the hearing on the formal complaint. We agree with the hearing panel that placing the respondent on probation is in the best interests of the legal profession and the citizens of the state.

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We therefore adopt the recommendation of the Disciplinary Ad- ministrator and the hearing panel and order that respondent's license be suspended for a period of one year, that the imposition of such suspension be stayed, and that respondent's period of probation be extended by two years. We further order that the respondent's probation be made subject to the additional terms and conditions as set forth in the final hearing panel's report. A minor- ity of the court would impose a lesser sanction.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Andrew M. Delaney be and he is hereby disciplined by suspension for a period of one year in accordance with Supreme Court Rule 203(a)(2) (2019 Kan. S. Ct. R. 240), that the imposition of such suspension be stayed, and that respondent's period of probation be extended by two additional years effective on the date of the filing of this opinion.

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

JARED B. JOHNSON, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Johnson was appointed to hear case No. 121,208 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court created by the retirement of Justice Johnson.

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In re Shepard

CCR No. 1318

In the Matter of APRIL C. SHEPARD, Respondent.

___

ORIGINAL PROCEEDING IN DISCIPLINE

COURTS—Disciplinary Proceeding—Public Reprimand. Court reporter was disciplined by public reprimand for violation of a rule adopted by the State Board of Examiners of Court Reporters, Board Rule No. 9.F.9., which requires maintaining impartiality toward a defendant in a criminal trial.

Original proceeding in discipline. Opinion filed December 6, 2019. Public reprimand.

Todd N. Thompson, appointed disciplinary counsel for the State Board of Examiners of Court Reporters, argued the cause and was on the brief for the petitioner.

James G. Chappas, of James G. Chappas, Chartered, of Topeka, argued the cause and was on the brief for the respondent.

PER CURIAM: This is an original proceeding in discipline filed by the State Board of Examiners of Court Reporters (Board) against the respondent, April C. Shepard, a court reporter at the Wyandotte County District Court who previously served in that capacity at the Shawnee County District Court. On June 13, 2018, the appointed counsel for the Board filed a formal complaint against the respondent alleging she failed to maintain impartiality toward a defendant in a criminal trial she reported, a violation of Rules Adopted by the State Board of Examiners of Court Reporters, Board Rules No. 9.F.9. (2019 Kan. S. Ct. R. 419). On July 19, 2018, the respondent timely filed an answer to the formal complaint. In her answer, the respondent admitted to "the allegations contained in all paragraphs of the Formal Complaint." On January 2, 2019, the Board filed an order approving a proposed cease and desist order submitted by the respondent's attorney and the Board's appointed counsel. In its order the Board scheduled a hearing to determine whether the cease and desist order should be private or public. On April 11, 2019, a hearing was held on the formal complaint before a panel of the Board. Respondent appeared in person and by her counsel. The hearing panel heard argument on whether the agreed upon cease and desist order would be private or whether

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In re Shepard the Board would recommend discipline to the Kansas Supreme Court. Upon conclusion of the hearing, the panel took the matter under advisement. On May 20, 2019, the panel issued its findings and unanimous recommendation. [Note: The panel refers to Rule 366, which was repealed in 1982; however, the correct cite should be to the Rules Adopted by the State Board of Examiners of Court Reporters, Board Rules Nos. 1-9.]

"Board Recommendation Concerning Discipline

. . . .

"1. Respondent previously worked at the Shawnee County District Court.

"2. In 2012, while working in Shawnee County, Respondent was a court reporter for the highly publicized murder trial of Dana Chandler.

"3. Chandler was convicted of killing her ex-husband and his girlfriend. The conviction was appealed, alleging prosecutorial misconduct, insufficient evidence, and prejudicial publicity.

"4. An article in the Topeka Capital Journal on October 29, 2017, discussed the murder, conviction, and appeal, and included alleged Facebook quotes from Respondent. Specifically, the article attributed to Respondent the following comments about the Chandler trial:

'Were you there listening to it? I was,' said April Shepard, a court reporter who worked the Chandler trial. 'I will not say that I agree with everything Jacqie Spradling said or did, but it didn't change anything. Dana Chandler is not innocent. She may get a new trial, but the outcome will be the same. No one else would've done this but Dana Chandler.'

"5. Copies of screen shots from Facebook that are attributed to Respondent include the following (some dates may not be accurate):

'a. Oh, stop. Dana Chandler is not innocent. She may get a new trial but the outcome will be the same. (April 7, 2016)

'b. No one else would've done this but Dana Chandler. (April 18, 2016)

Well, I can tell you that it won't be that judge because JUDGE PARRISH is a fair judge and I know her well. Just because he says this doesn't make it so. Were you there listening to it, I was. I will not say that I agreed with everything Jackie Spradling said or did, but it didn't change anything. (April 19, 2016)

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In re Shepard

'c. I don't believe Jackie [S]pradling lied. (August 2016)

'd. Look, I was there, I was the court reporter for that trial and, yes, Jackie pushed a little too far at times, but there was nothing more damning than those telephone jail calls between Dana Chandler and her sister Shirley and that's what changed it for everyone if they thought she didn't do it before. The fact of the matter is she's the only one that could have done it and would have done it. She had a major axe to grind with Karen Harkness and Mike Sisco for she stalked them repeatedly. (January 2017)

'e. It's not that wrong if you think about how many cases there are. They're more right than they are wrong. (June 25, 2017)

'f. Linda Coe, I'm confident they got the right perpetrator in this case. Look, I was there, I reported that whole case. I saw firsthand this case. I do agree, though, a lot of times they have prosecuted the wrong person and I believe those people should be exonerated however it happens. This case however is very different. (July 12, 2017)'

"6. Respondent acknowledges that the above posts were her posts. She had for- gotten about a couple of the posts, but has stated she will 'take ownership of them.'

"7. Chandler's appeal was most recently argued to the Kansas Supreme Court in January, and in April 2018, the conviction was overturned. State v. Chan- dler, 307 Kan. 657, 414 P.3d 713 (2018).

"8. Respondent defends her conduct by contending: a. She handled herself in an impartial and objective manner while she was a court reporter for the trial; the trial occurred four or more years prior to the Facebook posts. b. She no longer works for the Shawnee County District Court. c. She has had high profile cases before, such as the John Robinson barrel- murderer case in Johnson County, and she refrained from any public comments in that instance, despite many inquiries. d. She had a sense of the Chandler case 'being over' because it had been a couple of years since the trial, and she knew she would never be involved again because she had moved to Wyandotte County. e. Respondent does admit that after re-reading the social media posts that 'in hindsight, perhaps that was not the appropriate thing to do,' and she stated: 'It won't happen again.'

"Therefore, Respondent admits that her conduct violated Rule No. 9.F.9.

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In re Shepard

"Remaining at issue was appropriate discipline of the Respondent. Respondent requests private censure. DC [Disciplinary Counsel] objects. The Board took the matter under advisement. The matter is ripe.

"DISCUSSION

"The Rules Relating to the State Board of Examiners of Court Reporters (2019 Edition) were established by the Kansas Supreme Court. Rule 366 [Board Rule No.] 9.E. refers to Disciplinary Sanctions. It states:

'The Board may, based upon clear and convincing evidence presented, take one or more of the following actions:

1. Dismiss the charges.

2. Admonish the certificate holder.

3. Issue a private order of cease and desist.

4. Recommend discipline to the Kansas Supreme Court. "Dis- cipline" means public reprimand, imposition of a period of probation with special conditions which may include additional professional education or re-education, suspension of the certificate, or revocation of the certificate. In addition to any discipline imposed pursuant to these rules, if the certificate holder is a state employee, the reporter may be disciplined under the Rules Relating to the Kansas Court Personnel System.'

"Both DC and Respondent urge the Board to determine the issue of sanctions informally, pursuant to Rule 366 [Board Rule No.] 9.D.8., which states: 'Nothing in these rules shall prevent the Board from informally stipulating and settling any matter relating to the certificate holder's discipline.' The Board has determined, however, that Rule 366 [Board Rule No.] 9.D.8. does not allow the Board to override the requirements of Rule 366 [Board Rule No.] 9.E. Rather, Rule 366 [Board Rule No.] 9.D.8. only allows the Board to determine informally by stipulation such matters as the facts of the case, which has been done here. It does not allow the Board to determine finally any discipline more serious than a private order of cease and desist. This interpretation is supported by the following instruction, found at Rule 366 [Board Rule No.] 9.D.7.: 'At the conclusion of the hearing, the Board may take any of the actions set forth in subsection E of this rule.' Should the Board find that any form of discipline listed in Rule 366 [Board Rule No.] 9.E.4. is appropriate under the circumstances of this case, it may only recommend such discipline to the Supreme Court.

"Turning to the subject of appropriate discipline, the DC urges the Board to find that such discipline should be public for several reasons. First, public discipline provides transparency to the public that the Respondent has violated the rules and is being punished for that violation. This transparency fosters public confidence in both Board oversight of certificate holders and the accountability to which certificate holders are held. Without public discipline, the public may believe that violation of the rules is ignored, especially if research into allegations

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In re Shepard of misconduct shows nothing at all. A logical—though incorrect—inference could be that nothing happened, or that the only action taken was for the supposedly neutral authority to hide the problem. We can assure the public we take our role seriously, but they feel more assured when we can show them we do.

"Second public discipline educates other certificate holders that certain activities violate the rules. It serves to remind them of the rules and what types of things may get them in trouble.

"Third, there is a deterrence effect from public discipline. At the least, it is an embarrassment that others will want to avoid. Further, it will warn other certificate holders that seriously inappropriate behavior may be punished harshly and be quite costly in terms of lost income, in addition to the embarrassment. In this way, public discipline in one case works to prevent others from engaging in the prohibited conduct for fear that they, too, might be punished similarly.

"In contrast, the Respondent argues that private censure is the most appropriate form of discipline under the facts of this case. To support her assertion, she presents several mitigating considerations.

"First, Shepard has stipulated to what she did and that she violated the Rules. In doing so, Respondent saved the Board the time and resources necessary for a trial.

"Second, Respondent asserts the violations themselves are not serious enough to justify some form of public discipline. The violation involved a Face- book conversation after the defendant in State v. Dana Chandler had already been convicted, and after the Respondent had completed all her duties in the case. The comments weren't that bad, and could have been ignored had the case been less well-known. Respondent also believes the pressure placed on her by members of the public have 'punished' her in ways that should somehow be acknowledged by the Board as punishment enough in themselves.

"Third, the Rule violated is too vague to teach other Reporters much. Rule 366 [Board Rule No.] 9.F. sets forth Prohibited Conduct. Subsection 366 [Board Rule No.] 9.F.9. prohibits a certificate holder from '[failing] to maintain impartiality toward each participant in all aspects of reported proceedings or other court-related matters.' To the point, this rule does not spell out the kinds of things that might be considered partial. Further, 'partial' is not defined within the context of the Rules. In addition, there is nothing in the Rules to indicate requisite intent, nor is there any mention of prejudice that may—or may not—result from the 'partial' actions. After all, the duties of a Court Reporter are primarily ministerial, as the Reporter has no discretion in what to record. He must record everything. Thus, the impartiality of a Reporter is irrelevant to the record. Ultimately, public discipline would not teach other Reporters anything because the Rule is too vague to provide Notice or warning of what to avoid.

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In re Shepard

"Finally, the Respondent urges leniency because she is an excellent court reporter who has fulfilled her obligations well and professionally for more than 20 years.

"After considering all arguments and evidence, both aggravating and mitigating, the Board finds by clear and convincing evidence that the Respondent violated Rule 9.F.9. of the Rules Adopted by the State Board of Examiners of Court Reporters. The Board hereby recommends to the Supreme Court that Re- spondent receive a PUBLIC REPRIMAND. The Board is persuaded by the arguments of the DC, and believes the actions of Respondent are serious enough to justify this discipline.

"The actions taken by Respondent surrounded one particular—and highly publicized—murder trial for which the Respondent took the official record. Shepard's Facebook comments could not have been more clearly partial against the Defendant in that case. She asserts that she felt she was at liberty to make these comments about the case because the trial was essentially over and her official role had ended. Those assertions are not persuasive. A case on appeal is most certainly not concluded, and an Official Court Reporter should know that. Moreover, Respondent should have known that her comments would carry the strength of real or imagined authority because of her official role in the trial and the fact that she had a front-row seat to observe all the evidence."

DISCUSSION

This action was initiated by the Board through its appointed disciplinary counsel. Respondent was given adequate notice of the allegation that she engaged in conduct prohibited by the Rules Adopted by the State Board of Examiners of Court Reporters. Re- spondent was also given timely notice of the hearing before the panel and the hearing before this court. Respondent was present at each hearing. The respondent does not contest the findings by the hearing panel. Indeed, she stipulated to the facts and admits she violated Board Rule No. 9.F.9. (2019 Kan. S. Ct. R. 419) (failure to maintain impartiality). Furthermore, the findings of the hearing panel establish by clear and convincing evidence the alleged misconduct. The evidence also supports the panel's conclusions. We adopt the panel's findings and conclusions. We, accordingly, find respondent engaged in prohibited conduct by failing to maintain impartiality toward each participant in a trial she reported for in district court. The only remaining issue before us is the appropriate discipline for the respondent's violation. The Board may recommend

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In re Shepard the following discipline to the Kansas Supreme Court: (1) public reprimand; (2) imposition of a period of probation with special conditions which may include additional professional education or re-education; (3) suspension of the certificate; or (4) revocation of the certificate. Board Rule No. 9.E.4. (2019 Kan. S. Ct. R. 418). Prior to the hearing before this court, the disciplinary counsel agreed with the hearing panel that a public reprimand was the appropriate discipline. During rebuttal closing argument, the disciplinary counsel argued it was apparent that more than a public reprimand was appropriate and some "educational discipline" was needed. The respondent requested that the cease and desist order be private. In support of her requested discipline, respondent's arguments are summarized as follows: (1) the rule prohibiting partiality lacks a clear definition; (2) she was not partial toward either side during the actual reporting of the trial; (3) the trial and jury conviction occurred several years before she made the comments and she had moved to another county so she knew she would never be involved with the case again; (4) she had been "baited" into making the comments; (5) she did not make these comments to any public news reporter or outlet; (6) she has cooperated with the investigation, apologized, and promised not to make the same mistake; and (7) this is her first violation and she has remained in good standing during her more than 25 years of reporting. Our judicial system derives its authority from being fair and just. To accomplish this, the courts and officers of the court must maintain an image of fairness and impartiality in the administration of justice. See Williams-Yulee v. Florida Bar, 575 U.S. 433, 135 S. Ct. 1656, 1666, 191 L. Ed. 2d 570 (2015) ("Unlike the ex- ecutive or the legislature, the judiciary 'has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.' The judiciary's authority therefore depends in large measure on the public's willingness to respect and follow its decisions. [Citation omitted.]"). Court reporters employed by the district courts are officers of the court. Supreme Court Rule 352 (2019 Kan. S. Ct. R. 412). As such, they have an ongoing duty to avoid conduct that may be perceived by the public as partial in matters that come before the court.

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In re Shepard

With this background, we address respondent's arguments for a private cease and desist order.

The meaning of impartiality

Board Rule No. 9.F. sets forth conduct that is prohibited by a court reporter, which includes failure to maintain impartiality toward each participant in all aspects of reported proceedings or other court-related matters. Although respondent concedes that in hindsight her comments were inappropriate, she argues that impartiality should be better described and examples should be given in the Rules. But impartiality is an underlying principle of our justice system. For example, the Rules Relating to Judicial Conduct are not much more specific. Supreme Court Rule 601B, Canon 1, Rule 1.2 (2019 Kan. S. Ct. R. 441) states: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary . . . ." Comment 3 explains why the Canon does not give examples of how these principles could be violated: "Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms." (2019 Kan. S. Ct. R. 441). Impartiality is not a complex concept. It is defined as absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. Rule 601B, Terminology (2019 Kan. S. Ct. R. 436). Respondent knew the case she was discussing was on appeal because her Facebook comment acknowledged the possibility that the defendant may get a new trial but opined the defendant would be found guilty again. This comment, along with her other comments that spanned almost a year and a half, completely ignores the presumption of innocence that defendant carries throughout a trial. Respondent's comments are concrete and classic examples of bias or prejudice against a party.

The context of the comments

Respondent argues that her inappropriate comments are mitigated by the circumstances. However, the fact the first trial was held a few years before respondent made the comments is of no

VOL. 310 SUPREME COURT OF KANSAS 1025

In re Shepard importance when considering mitigating factors. Respondent was still employed in the judicial system as a court reporter. How long after a trial she showed partiality against the defendant does not matter. Nor does it matter if she feels she was tricked or baited into making the comments. The respondent had an ethical duty to refrain from making them. Furthermore, the record clearly shows the respondent was not drawn or provoked into making these comments; they were her opinions and they were initiated by her. Fi- nally, respondent's argument that her comments should be considered less serious because they were made on a social media plat- form rather than a media outlet is without merit. What matters is the comments were made in public.

Respondent's behavior after the complaint

Respondent's conduct was egregious, and respondent agrees her comments, which were made over a year's period of time, damaged her profession. However, once a formal complaint was filed against her, she cooperated with the investigation, agreed she made inappropriate comments, apologized, and stated she will not make the same mistake again. These are mitigating factors that we consider in determining the appropriate discipline. Having considered all matters raised, we find the Board's recommendation for a public reprimand to be persuasive.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that April C. Shepard be and is hereby disciplined by public reprimand in accordance with Board Rule No. 9.E.4. of the Rules Adopted by the State Board of Examiners of Court Reporters.

IT IS FURTHER ORDERED that this opinion be published in the official Kansas Reports.

MICHAEL J. MALONE, District Judge Retired, assigned.1

1REPORTER'S NOTE: Retired District Judge Malone was appointed to hear CCR No. 1318 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

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State v. Harris

No. 112,883

STATE OF KANSAS, Appellee, v. SAMUEL L. HARRIS, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Kidnapping—Taking or Confining to "Facilitate" Crime. The "taking or confining" element for the crime of kidnapping under K.S.A. 2018 Supp. 21-5408 is satisfied if the purpose of the taking or confining was to "facilitate" the commission of another crime. The term "facilitate" means something more than to just make the crime's commission more convenient. The taking or confining must have some significant bearing on making the other crime's commission easier.

2. SAME—Kidnapping—Taking or Confining to "Facilitate" Crime—Proof. To constitute a kidnapping under K.S.A. 2018 Supp. 21-5408(a)(2) when a taking or confining is alleged to have been done to facilitate another crime's commission, the resulting taking or confinement: (a) must not be slight, inconsequential, or merely incidental to the other crime; (b) must not be of the kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime's commission substantially easier or substantially lessens the risk of detection.

3. SAME—Kidnapping—Phrase in Kidnapping Statute Does Not Create Al- ternative Means. The statutory language "to facilitate flight or the commission of any crime" in K.S.A. 2018 Supp. 21-5408(a)(2) does not create alternative means. It merely provides options within a means.

4. APPEAL AND ERROR—Cumulative Error Test—Application. The test for determining whether cumulative error requires reversal of a defendant's conviction is whether the totality of the circumstances substantially prejudiced the defendant and denied that defendant a fair trial.

5. SAME—Collateral Attack on Jurisdiction Based on Complaint—State v. Hall Not Applicable. State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), does not apply to collateral attacks challenging jurisdiction based on the charging document in a criminal case so long as the charged offense is a crime under Kansas law and the defendant was adequately apprised of that alleged offense.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 16, 2016. Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed December 13, 2019. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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State v. Harris

Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause and was on the briefs for appellant.

Laura L. Miser, assistant county attorney, argued the cause, and Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: Samuel L. Harris appeals from his convictions for robbery, kidnapping, and criminal threat. These crimes stemmed from a 2013 incident during which he controlled his victim for two hours, repeatedly forcing her to move from room to room within a small apartment while demanding money. Before a Court of Ap- peals panel, Harris claimed several trial errors and ineffective assistance of defense counsel. The panel held there were two trial errors and rejected the ineffective assistance contention. It determined the trial errors were harmless both individually and collectively. State v. Harris, No. 112,883, 2016 WL 7325012 (Kan. App. 2016) (unpublished opinion). Harris now challenges the panel's analysis concerning the evidence supporting his kidnapping conviction, the jury instructions, cumulative error, and his ineffective assistance issue. We affirm, although our rationale differs from the panel's reasoning on some questions.

FACTUAL AND PROCEDURAL BACKGROUND

Harris was at Victoria Lujan's apartment. He kept talking to her while she was trying to sleep, so she asked him to leave. He became frustrated by this and pushed her across the bed. She hit her head against a wall, leaving a mark under one eye. Harris pan- icked and said, "[O]h, my gosh, what happened to your eye? Did I do that? I'm going to go back to prison." Lujan said she would not call the police, but again asked him to leave. He refused and demanded money so he could get away. He knew Lujan typically kept $900 in cash each month for rent and living expenses. Throughout the next two hours, Harris grabbed Lujan's arms and forcefully moved her from the bedroom to the bathroom, to the living room, and to the kitchen. She testified they went back and forth into each room at least twice. While doing so, he repeatedly demanded money. He threatened to kill her dog in front of her before killing her. Eventually, she gave him roughly $700.

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State v. Harris

A jury found Harris guilty of kidnapping, robbery, criminal restraint, and criminal threat. But the district court reversed the criminal restraint conviction, holding it was incorporated within the kidnapping conviction. The court sentenced Harris to 216 months in prison. Harris appealed, asserting multiple trial errors and ineffective assistance of defense counsel. The panel remanded the case for a Van Cleave hearing to consider the ineffective assistance issues. See State v. Van Cleave, 239 Kan. 117, ¶ 2, 716 P.2d 580 (1986) (acknowledging appellate court's authority to remand ineffective assistance of counsel challenges to the trial court for an initial determination). On remand, the district court conducted an evidentiary hearing and found Harris was not entitled to relief. Harris incorporated that adverse ruling into his appeal. The panel ultimately determined there were two trial errors, but affirmed the convictions because those errors were harmless both individually and collectively. Harris, 2016 WL 7325012, at *15. Harris sought our review. Among his challenges, we have determined some are not sufficiently briefed or argued to merit substantive consideration, i.e., three of the four contentions raised at the Van Cleave hearing, as well as assertions against evidence admissibility and arguments about Harris' criminal history score. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) ("When a litigant fails to adequately brief an issue it is deemed abandoned."); Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 53) (court will not consider issues not presented or fairly included within the petition for review). For the remaining issues, we first address two evidence sufficiency arguments and then discuss four jury instruction challenges. And because we determine two trial errors existed from these issues, we proceed to consider the cumulative effect of those errors. Finally, we discuss the ineffective assistance of counsel argument. We affirm the convictions.

SUFFICIENCY OF THE EVIDENCE

Harris argues there is insufficient evidence to sustain his kidnapping conviction. First, he asserts the evidence fails to show he

VOL. 310 SUPREME COURT OF KANSAS 1029

State v. Harris took or confined Lujan. Second, he insists the evidence fails to establish his intent to facilitate flight.

Additional facts

Lujan testified her one-bedroom apartment was arranged in an open rectangle. All agree Harris forcefully moved her to different rooms, first taking her from the bedroom, where the incident began, to the bathroom. There, Lujan said, Harris was "firm . . . ad- amant about getting the money." He held a body pillow as if he might suffocate her. He said, "I'm not playing. Victoria, you need to give me your money and I need to get away. I'm not playing." She was too scared to try to break free. Next, he took her back to the bedroom. Harris sat on the bed and said, "'Lord, please forgive me for this murder I'm about to commit.'" This terrified Lujan even more. She was nude and asked to get dressed, but Harris refused. He told her "'if you get dressed, then you can run out the door and you're not going to run outside naked.'" He also took her cell phone. After this, Harris moved Lujan into the living room, where he sat on a love seat and made her sit on the floor in front of him. She offered sex to distract him, but he refused. While in the living room, he threatened to kill her dog in front of her and then to kill her. He then took her into the kitchen, where he demanded she help him untangle several extension cords so he could tie her up. They failed at this, so he gave up and took her back to the living room where he again made her sit on the floor. He said, "'I'm not playing . . . . I have a gun on the back side of me. I've killed three people before, it's not going to be a problem to kill you.'" At that point, he punched her in the jaw with a closed fist. After being hit, Lujan retrieved her money. She gave Harris $70 to $90 at first, but he demanded more. They went back to the bedroom and got her remaining cash. Harris then took her from the bedroom back to the living room where he made her sit on the sofa. He put two pillows over her ears while he called a friend, David Deck, to ask for a ride. She could hear Harris saying, "I need to get out of town." After that, Harris smoked a cigarette near the front door, which he opened because the smoke bothered Lujan. He made her

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State v. Harris stand next to him. He said again he was going to "hog tie" her with an extension cord and kill her. Lujan tried, but failed, to get through the door. She then ran to the wall of an adjoining apartment and banged on it while yelling out to her neighbor. Harris knew Lujan had a system for alerting the neighbor if Lujan needed help, so he ran away. The neighbor testified she heard muffled voices and yelling coming from Lujan's apartment. The neighbor called 911 when Lujan banged on the wall. Lujan came to the neighbor's apartment naked and crying hysterically. Deck testified he went to an area near Lujan's apartment after receiving the call from Harris, who was agitated when Deck arrived. The pair went to Deck's house. When Deck left to buy beer, Harris gave him a $20 bill and Deck saw that Harris had a large amount of cash. Although the State charged Harris with aggravated kidnapping, the jury found him guilty of the lesser included offense of kidnapping. The jury instructions listed the alleged kidnapping's three elements as: (1) Harris took or confined Lujan by force or threat; (2) he took or confined her "to facilitate flight or the commission of any crime"; and (3) the "act occurred on or about the 3rd day of May, 2013, in Lyon County, Kansas." Harris challenges the sufficiency of the evidence admitted to support those first two elements.

Standard of review

When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence "in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Rizal, 310 Kan. 199, 209, 445 P.3d 734 (2019). A reviewing court "generally will 'not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.'" State v. Gonzalez, 307 Kan. 575, 586, 412 P.3d 968 (2018).

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State v. Harris

1. Kidnapping's taking or confinement element

K.S.A. 2018 Supp. 21-5408(a) specifies that the crime of kidnapping can be accomplished "by force, threat or deception" with the specific intent to achieve certain objectives. K.S.A. 2018 Supp. 21-5408(a) ("[1] For ransom, or as a shield or hostage; [2] to facilitate flight or the commission of any crime; [3] to inflict bodily injury or to terrorize the victim or another; or [4] to interfere with the performance of any governmental or political function."); State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976). In Harris' case, we are focused on the second alleged statutory objective, i.e., "to facilitate flight or the commission of any crime." See K.S.A. 2018 Supp. 21-5408(a)(2). The trial court's instructions advised the jury it had to find Harris "took or confined" Lujan "by force or threat" and did so "to facilitate flight or the commission of any crime." Harris disputes whether he had the required specific intent to achieve the pro- scribed objective. The term "facilitate" means "something more than just to make more convenient." 219 Kan. at 215. The Buggs court discussed what is needed for a taking or confining to sustain a kidnapping conviction:

"[I]f a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:

"(a) Must not be slight, inconsequential and merely incidental to the other crime;

"(b) Must not be of the kind inherent in the nature of the other crime; and

"(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection." 219 Kan. at 216.

The Buggs court also clarified the possible circumstances:

"For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and com- fort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is. The list is not meant to be exhaustive, and may be subject to some qualification

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State v. Harris when actual cases arise; it nevertheless is illustrative of our holding." 219 Kan. at 216.

Our question is whether repeatedly forcing Lujan from room to room within the one-bedroom apartment constitutes a taking or confinement within the statute's meaning under Buggs. Harris argues that because the incident occurred within the apartment's compact living space, only "short movements" purely incidental to the robbery were involved. We have no hesitation agreeing the evidence is sufficient in this regard. The panel correctly concluded Harris' movements of Lujan—however "short"—were not slight, inconsequential, or merely incidental to the robbery. Harris, 2016 WL 7325012, at *5. The statute specifies no particular distance to constitute kidnapping. In State v. Howard, 243 Kan. 699, 702, 763 P.2d 607 (1988), for example, the court held that restraining a kidnapping victim's movement within a dwelling for nearly three hours was not slight or merely incidental to the underlying sex crimes. Similarly, Har- ris grabbed Lujan's arms and forcefully restrained her while moving her around into each room for more than two hours while demanding her money. As in Howard, Harris' many acts of controlling Lujan's mobility over this extended period should not be considered slight, inconsequential, or merely incidental to the robbery. The panel also correctly held Harris' movements were not inherent in robbery. The statute defines robbery as "knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person." K.S.A. 2018 Supp. 21- 5420(a). Its plain language shows controlling someone's movements over an extended period is not inherent in the crime. See State v. Richmond, 258 Kan. 449, 453, 904 P.2d 974 (1995) ("The moving of the robbery victim from room to room is not inherent in the crime of robbery."); see also State v. Jackson, 238 Kan. 793, 803, 714 P.2d 1368 (1986) (defendant's actions in shoving victim out of structure and trying to force victim into car not "of the kind inherent in the nature of attempted first-degree murder"). Harris nevertheless contends holding Lujan for two hours was "all part of one larger continuous effort to have [her] give up her

VOL. 310 SUPREME COURT OF KANSAS 1033

State v. Harris money." But his challenge has no substantive basis. He mainly relies on State v. Hays, 256 Kan. 48, 883 P.2d 1093 (1994), in which four men entered the victim's house and one held the victim against a wall while the others stole a computer and other items. The court reversed the kidnapping conviction because the victim was not moved and the confinement was incidental to and part of the nature of the aggravated robbery under those facts. 256 Kan. at 63. But Hays is distinguishable because it did not involve the extended duration and repetitive room-to-room forced movements present in Harris' case. In addition, Harris refused to let Lujan get dressed because he thought keeping her naked inhibited her desire to escape. He told her "'if you get dressed, then you can run out the door and you're not going to run outside naked.'" He also continued controlling and restraining Lujan's movements even after she handed over her money. He even kept her at the opened front door to prevent her escape while he smoked. These facts demonstrate the third Buggs element, significance independent of the robbery, because they show the movements made the robbery substantially easier to commit or substantially lessened the risk of detection. Buggs, 219 Kan. at 216. And finally, these facts support the rather obvious conclusion that Harris' conduct facilitated his flight from the crime scene of the robbery because he arranged his getaway as the final events unfolded. Viewed in the light most favorable to the State, there was sufficient evidence that Harris' acts throughout the robbery satisfy the statutory requirements as interpreted by Buggs.

2. The alternative means contention

The pertinent part of the jury instruction read: "The defendant did so take or confine . . . Lujan to facilitate flight or the commission of any crime." (Emphasis added.) Harris argued to the panel that the evidence could not support a finding of guilt on each of what he asserted were alternative means for committing kidnapping, i.e., facilitating flight or commission of any crime. More specifically, he asserted the evidence was lacking to show he held Lujan with intent to facilitate flight. The panel correctly rejected this contention as a matter of law.

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State v. Harris

In State v. Haberlein, 296 Kan. 195, 207-09, 290 P.3d 640 (2012), the court determined the statutory language "to facilitate flight or the commission of any crime" did not create alternative means but merely provides "options within a means." Harris asks us to reconsider Haberlein, but fails to advance any substantive argument for doing so. This makes it unnecessary to perform any additional alternative means analysis. Haberlein controls.

JURY INSTRUCTIONS

For the first time on appeal, Harris asserted several jury instruction defects that he believes require reversal, both individually and collectively. He claimed the trial court erred when it: (1) failed to instruct on criminal restraint as a lesser included offense of kidnapping; (2) did not specify the underlying crime, i.e., robbery, in the kidnapping instruction; (3) failed to give a unanimity instruction for the kidnapping count; and (4) failed to provide a unanimity instruction for the robbery count. We affirm.

Standard of review

When reviewing a jury instruction issue, an appellate court follows a well-known four-step analysis, whose progression and corresponding standards of review are: (1) the court considers the issue's reviewability from both jurisdiction and preservation viewpoints, employing an unlimited standard of review; (2) the court determines whether the instruction was legally appropriate, using an unlimited review; (3) it determines whether sufficient evidence existed, when viewed in the light most favorable to the requesting party, to support the instruction; and (4) if the court finds error, it then must decide whether the error was harmless, using the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011). Gonzalez, 307 Kan. 596-97. The first step affects the last one because an unpreserved issue will be considered for clear error, i.e., the error may be considered harmless unless the party claiming it can convince the court the jury would have reached a different verdict without the error. K.S.A. 2018 Supp. 22-3414(3) ("No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict . . . unless the

VOL. 310 SUPREME COURT OF KANSAS 1035

State v. Harris instruction or the failure to give an instruction is clearly erroneous."); State v. Gentry, 310 Kan. 715, 720-21, 449 P.3d 429, 435 (2019). Since Harris' instruction challenges are raised for the first time on appeal, our standard for reversibility is clear error.

1. Failure to instruct on criminal restraint as a lesser included offense

Harris claims the trial court committed reversible error by failing to instruct on criminal restraint as a lesser included offense of kidnapping, rather than as an alternative crime. He argues this prevented the jury from making a proper decision between the two charges. The State seemingly conceded the error on appeal by stating "the better practice may have been to instruct the jury on criminal restraint as a lesser included offense as opposed to an alternative charge to aggravated kidnapping and kidnapping." The panel agreed error existed. Harris, 2016 WL 7325012, at *9 (quoting State v. Simmons, 282 Kan. 728, 742, 148 P.3d 525 [2006] ["'[K]idnapping and criminal restraint are lesser included offenses of aggravated kidnapping.'"]). But the panel also concluded the error was harmless under a clear error analysis. 2016 WL 7325012, at *10 (relying on State v. Winters, 276 Kan. 34, 72 P.3d 564 [2003]). On review, we are asked whether this harmless error conclusion is correct.

The trial court instructed on criminal restraint as an alternative charge to kidnapping, but not as a lesser included offense of kidnapping. The kidnapping instruction provided:

"To establish the charge of kidnapping, each of the following claims must be proved:

"1. The defendant took or confined . . . Lujan by force or threat.

"2. The defendant did so take or confine . . . Lujan to facilitate flight or the commission of any crime.

"3. This act occurred on or about the 3rd day of May, 2013, in Lyon County, Kansas."

The criminal restraint instruction stated:

"The defendant is charged in Alternative Count 3 with Criminal Re- straint. . . .

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State v. Harris

"To establish this charge, each of the following claims must be proved:

"1. The defendant knowingly and without legal authority restrained . . . Lujan so as to interfere substantially with her liberty; and

"2. This act occurred on or about the 3rd day of May, 2013, in Lyon County, Kansas."

In addition to these instructions, the district court instructed the jury that

"Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, un- influenced by your decision as to any other charges. The defendant may be convicted or acquitted on any or all of the offenses charged."

During deliberations, the jury asked the trial court: "'Does criminal restraint require a separate verdict from kidnapping? Is it a lesser charge or its own charge?'" The court, without objection from Harris, answered: "Please complete all verdict forms, including Alternative Count 3, criminal restraint." The jury went back to its deliberations and returned guilty verdicts on both the kidnapping and criminal restraint charges. The court reversed the criminal restraint conviction, holding it was incorporated within the kidnapping conviction as the two convictions were multiplicitous. The parties agreed. As argued in his petition for review, Harris appears to misun- derstand the panel's holding because he erroneously contends the panel failed to "determine the legal issue of whether a lesser included offense of [c]riminal [r]estraint should have been provided to the jury." And he suggests the panel did not find error because the panel reasoned "the trial court acted correctly in reversing a conviction of criminal restraint." But Harris' view of the panel's ruling is wrong. The panel explicitly stated there was error after determining a lesser included instruction was factually and legally appropriate. Harris, 2016 WL 7325012, at *10 (holding the trial court "erred when it gave criminal restraint as an alternative to Count 3 instead of as a lesser included offense"). On review, the issue for us is whether that error was harmless under a clear error standard, i.e., the error may be considered harmless unless the party claiming the error can convince the ap-

VOL. 310 SUPREME COURT OF KANSAS 1037

State v. Harris pellate court the jury would have reached a different verdict without the error. Gentry, 310 Kan. at 720-21, 449 P.3d at 435; see State v. Rosa, 304 Kan. 429, 437, 371 P.3d 915 (2016) (holding that when the State did not cross-petition from the Court of Ap- peals' finding of error, the only issue on review was whether the error was harmless). And as to that, Harris offers only a conclusory claim that the erroneous instruction precluded the jury from making a proper decision. He asserts that since "the jury may have chosen unlawful restraint under the facts of this case, the kidnapping conviction should be reversed." (Emphasis added.) This argument appears premised on the notion that the jury would have picked the criminal restraint charge over kidnapping if given the chance. When the jury returned guilty verdicts on both kidnapping and criminal restraint, the district court took the appropriate corrective action by vacating the lesser offense and sentencing Harris only for the kidnapping. See State v. Hernandez, 294 Kan. 200, 205, 273 P.3d 774 (2012) (noting when "one charge is a lesser included offense of the other, it was error to instruct on these charges as if they were alternative crimes. . . . When a defendant is convicted of multiplicitous offenses, the court must vacate the lesser sentence and impose sentence only on the greater offense."). But nothing in the record supports Harris' claim that the jury would not have returned the same guilty verdict on the kidnapping charge if the criminal restraint was submitted to the jury as a lesser included offense. And a jury is presumed to follow the instructions given to it. State v. Reid, 286 Kan. 494, 521, 186 P.3d 713 (2008). The district court's instruction to consider each crime separately fatally weakens Harris' attempt to establish clear error. See State v. Winters, 276 Kan. 34, 40-42, 72 P.3d 564 (2003) (holding asserted error in order of presenting included offenses to jury was not clear error when jury was instructed to consider the crimes separately and distinctly, because instruction ensured verdict on one crime would not affect verdict on another). And we have already determined the evidence against Harris was sufficient to support his kidnapping conviction. It is unnecessary to find the evidence was overwhelming or conclusive to meet the clear error standard of review. In other

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State v. Harris words, Harris' argument does not firmly convince us the jury would have reached a different verdict without the error.

2. Failure to identify the underlying offense

Harris next argues the trial court erred by failing to instruct the jury on the specific underlying offense supporting the kidnapping. The instruction stated only that Harris took or confined "Lujan to facilitate flight or the commission of any crime." (Em- phasis added.) The panel agreed this was error, but concluded it was harmless. Harris, 2016 WL 7325012, at *11. The State did not cross-petition for review, so our focus is again on reversibility. See Rosa, 304 Kan. at 437. Harris argues our analysis should be based on the harmless error test articulated in Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (holding error is harmless if the omitted element was uncontested and supported by overwhelming evidence). But Neder does not apply under our state's caselaw. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (citing Ward, 292 Kan. 541, ¶ 6). Notably, the panel did not use the appropriate standard of review, and the parties did not advance the proper one in briefing. See Harris, 2016 WL 7325012, at *11 (stating clear error applies but stating "[t]here is no reasonable possibility this error changed the result of the trial"). We will address harmless error using the proper, clear error standard. See K.S.A. 2018 Supp. 21-3414(3); Gentry, 310 Kan. at 720-21, 449 P.3d at 435 (appellate court will not disturb the conviction unless it is firmly convinced the jury would have reached a different verdict had the error not occurred). The trial record yields no question that robbery was the underlying crime facilitated by the kidnapping. And the jury instruction accurately stated the kidnapping was committed to facilitate the robbery. Harris therefore fails to convince us the verdict would have been different without the error. We hold the omission was not clearly erroneous.

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State v. Harris

3. Failure to give a unanimity instruction for the kidnapping count

Harris contends the evidence showed separate and distinct acts of restraint during the commission of the crime. He argues the State did not elect which restraint constituted the kidnapping and also notes the trial court provided no unanimity instruction. The panel held Harris' criminal acts constituted one unitary conduct because (1) the acts of confining Lujan took place over a few continuous hours; (2) they occurred at the same location, Lujan's apartment; (3) no intervening event emerged between the acts; and (4) no fresh impulse motivated any of the acts. Harris, 2016 WL 7325012, at *6. When a defendant challenges a district court's failure to give a unanimity instruction in a case involving multiple acts, a reviewing court uses a particularized three-step test:

"'The threshold question . . . , over which the court exercise[s] unlimited review, [is] whether the case truly involve[s] multiple acts, i.e., whether the defendant's actions could have given rise to multiple counts of the charged crime or whether the alleged conduct was unitary. . . .

"'The second step [is] a determination of whether an error occurred. If the State did not inform the jury which act to rely upon during its deliberations and the trial court did not instruct the jury that it must be unanimous about the particular criminal act that supported the conviction, there was error. . . .

"'The final step [is] to determine whether the error was reversible.' [Cita- tions omitted.]" State v. King, 297 Kan. 955, 979, 305 P.3d 641 (2013).

Under the first step, an appellate court determines whether the conduct was unitary—that is, whether the conduct was either part of one act or multiple acts separate and distinct from one another. Four factors are considered for that: (1) whether the acts occurred at or near the same time; (2) whether the acts occurred at the same location; (3) whether an intervening event occurred between the acts; and (4) whether a fresh impulse motivated some acts. King, 297 Kan. at 980-81. Harris focuses on fresh impulse. Harris identifies four acts he asserts were factually separate and distinct from one another: (1) "He held [Lujan] because he did not want to go to prison after pushing her at the beginning"; (2) "[h]e held her asking for her money"; (3) "[h]e held her so she

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State v. Harris could not go and escape"; and (4) "[h]e held her because he was thinking of tying her up in the kitchen." But this attempts to parse the incident too finely. What happened that evening cannot be factually separated into distinct criminal acts as Harris would have us do. These were all part of one unitary conduct—confining Lujan in her apartment for nearly two hours while taking her money. Once Harris began the incident, no break occurred—it continued until he left with his friend. This made giving a unanimity instruction inappropriate. In State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 175 (2005), the court held a kidnapping was a continuous incident that could not be factually separated even though the incident happened over several hours, the victim was moved from one location to another, and the victim was momentarily free when he tried to escape. The court held, "If the State had charged Kesselring with separate counts of kidnapping based on each act that Kesselring attempts to separate, the issue of multiplicity could have been justly raised." 279 Kan. at 683. The same rationale applies to Har- ris. We hold the panel correctly decided this issue.

4. Failure to give a unanimity instruction for the robbery count

As for the aggravated robbery, the charging instrument specifically alleged Harris took "property, to-wit: US currency" from Lujan. But when she testified, Lujan said Harris took both her cell phone and money. The district court's jury instruction stated only that, "To establish the charge of robbery . . . [the State must prove Harris] knowingly took property from . . . Lujan." (Emphasis added.) And in its closing argument, the prosecutor said: "I don't think there's any question the State's established that Mr. Harris took monies from Ms. Lujan." The jury found him guilty of the lesser included offense of robbery instead of aggravated robbery as originally charged. On appeal, Harris argued to the panel there were two acts that could separately constitute the alleged robbery: the taking of the cell phone and the taking of the money. Neither the State nor the

VOL. 310 SUPREME COURT OF KANSAS 1041

State v. Harris panel disagreed. Harris, 2016 WL 7325012, at *7. But after holding the charge involved multiple acts based on the evidence, the panel held no error occurred because the State explicitly referenced the taking of Lujan's money in its closing as the basis of the robbery charge—not the cell phone. Harris, 2016 WL 7325012, at *8; see also King, 297 Kan. at 982 (a unanimity instruction was necessary unless the State elected the particular criminal act on which it relied, either explicitly or functionally). Now before this court, Harris concedes the State's election, but he still complains the jury instruction lacked the necessary specification. The problem is that he fails to cite any relevant authority for why this deficiency matters when our caselaw consistently acknowledges no multiple-acts error occurs when the State tells the jury which particular act it must rely on in its deliberation. See State v. Trujillo, 296 Kan. 625, Syl. ¶ 1, 294 P.3d 281 (2013). And since the State did that, we affirm the panel's holding.

CUMULATIVE ERROR

Harris next argues the cumulative effect of the two jury instruction errors requires the kidnapping conviction's reversal. Considered collectively, cumulative error may be so great it requires reversing a defendant's conviction. The test for that is whether the totality of the circumstances substantially prejudiced the defendant and denied that defendant a fair trial. State v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013). When deciding if cumulative errors are harmless, an appellate court assesses the errors in context with the entire record, considering how the trial judge dealt with the errors as they arose; the nature and number of errors and their interrelationship, if any; and the evidence's overall strength. State v. Miller, 308 Kan. 1119, 1176, 427 P.3d 907 (2018). We agree with the panel that the cumulative effect of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate, does not require reversal. Viewing the errors against the entire record, they did not so prejudice Harris as to deny him a fair trial. The trial court appropriately dealt with the

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State v. Harris first by reversing the criminal restraint conviction. As to the second, it was obvious at trial what the underlying crime was for the kidnapping instruction and there was ample evidence to support it. Any cumulative effect was insignificant when weighed against the strength of the State's evidence.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Harris argues the panel erred by applying the wrong law to his ineffective assistance of counsel claim. His contention is that defense counsel, Frederick Meier, failed to timely file a motion for arrest of judgment on the kidnapping conviction with the district court. See K.S.A. 2018 Supp. 22-3502 (stating that a motion for arrest of judgment must be filed within 14 days after the conviction, and the district court "shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged"). In Harris' view, the State's complaint was defective because it did not identify the underlying crime for the alleged aggravated kidnapping. Harris argues that if Meier had timely filed a motion to arrest judgment, the district court would have been forced to apply a stricter standard of compliance against the State when reviewing the charging document's sufficiency. This, he continues, would have resulted in dismissal of the lesser included offense of kidnapping, which was the crime the jury convicted him of.

Additional facts

The amended charging document stated:

"That on or about the 3rd day of May, 2013, in Lyon County, Kansas, Samuel Lee Anthony Harris, then and there being present did unlawfully and feloniously take or confine a person, to wit: Victoria Gomez Lujan, accomplished by force, threat or deception and with the intent to hold said person to inflict bodily injury or to terrorize the victim or another; or to facilitate flight or the commission of any crime and with bodily harm being inflicted on Victoria Gomez Lujan." (Em- phasis added.)

At the time of Harris' conviction (August 2014) and his Van Cleave hearing (April 2016), courts reviewed charging document sufficiency under the framework set out in State v. Hall, 246 Kan.

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State v. Harris

728, 793 P.2d 737 (1990), overruled by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (July 2016). Hall established two different standards of review depending on when the defendant first raised the issue. A stricter rule—known as the "pre-Hall standard"—applied when an issue was raised in the district court before, during, or within 14 days after trial. Harris relies on this pre-Hall standard because it provided that a complaint omitting an essential element of the charged crime was "jurisdictionally and fatally defective" resulting in reversal of a conviction of that offense. 246 Kan. at 747. But a more liberal rule—the "post-Hall standard"—applied when the question was newly raised on appeal. 246 Kan. at 764- 65. Under this post-Hall standard, also called the "common-sense rule," appellate courts examined the information as a whole and interpreted the charging document to include facts necessarily implied. 246 Kan. at 764-65. In other words, charging instruments challenged later in the process were construed to favor validity. 246 Kan. at 762. On remand from the panel, the Van Cleave court agreed Mei- er's failure to file the motion fell below an objective standard of reasonableness. This deprived Harris of the opportunity to force the court to "critically consider" the charging document's sufficiency according to the Van Cleave court. But moving to prejudice, the court applied the post-Hall common-sense rule to conclude no prejudice occurred. The Van Cleave court found: (1) Meier correctly understood the State was relying on robbery as the underlying offense for the aggravated kidnapping and prepared a defense accordingly after reviewing the State's discovery and the preliminary hearing transcript; (2) Harris failed to show any impairment to his ability to plead this conviction in a later prosecution, noting there was little evidence of any other crimes on which the State could be basing its claims; and (3) Harris failed to claim his fair trial rights were compromised by the complaint's wording. It also noted, as dicta, that the complaint was sufficient, even under pre-Hall, because the complaint's language closely followed the statutory language in K.S.A. 2018 Supp. 21-5408 ("to facilitate flight or the commission of any crime . . . ."). This was an apparent reference to K.S.A.

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State v. Harris

22-3201(b) ("The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient." [Emphasis added.]). On appeal to the panel, Harris shifted his argument. He claimed the Van Cleave court should have used the two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for ineffective assistance of counsel claims. More specifically, Harris focused on Strickland's second prong, i.e., whether there is a reasonable probability the result of the proceeding would have been different without the deficient performance. He asserted that using the pre-Hall standard would necessarily mean there was no jurisdiction over the aggravated kidnapping charge, so the district court would have had no choice but to arrest the judgment and dismiss his conviction of the lesser included offense of kidnapping. The panel held the Van Cleave court's factual findings were supported by substantial competent evidence. It then applied Dunn, 304 Kan. 773, which overruled Hall, on the prejudice prong. It noted Dunn identified three types of charging document defects—none of which prevents or destroys subject matter jurisdiction as a matter of law. The panel determined the appropriate harmlessness analysis was under K.S.A. 2015 Supp. 60-261 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."). Har- ris, 2016 WL 7325012, at *17. The panel reasoned that "[a]s a general rule, a decision overruling precedent is applied to all similar cases pending as of the date of the overruling decision." 2016 WL 7325012, at *16 (citing State v. Nguyen, 281 Kan. 702, 715, 133 P.3d 1259 [2006]). And based on that, the panel held that even though the Van Cleave court used the post-Hall test, it reached the correct result and affirmed. 2016 WL 7325012, at *18 (citing State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 [2015] [affirming district court as right for wrong reasons]).

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State v. Harris

Standard of review

The panel correctly described the standard of review for as- sessing the district court's Van Cleave ruling, noting:

"A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Appellate courts review the Van Cleave court's factual findings to determine whether the findings are support[ed] by substantial competent evidence and support the court's legal conclusions; appellate courts apply a de novo standard to the district court's conclusions of law. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013)." Harris, 2016 WL 7325012, at *15.

Discussion

To understand the tactical significance to Harris' argument, recall that when addressing a claim of ineffective assistance of counsel, a court employs Strickland's two-prong test, under which the court first determines if counsel's performance was deficient under the totality of the circumstances, and then considers whether there is a reasonable probability the result of the proceeding would have been different without the deficient performance. Sola-Mo- rales v. State, 300 Kan. 875, 882-83, 335 P.3d 1162 (2014); Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3-4, 694 P.2d 468 (1985) (adopting Strickland in Kansas cases). Harris asserts that counsel's failure to challenge the charging document necessarily resulted in prejudice because, if he had timely done so the pre- Hall standard would have applied, and the district court would have had no choice but to arrest the judgment for lack of jurisdiction. But Harris' argument fails to account for our decision in Fer- guson v. State, 276 Kan. 428, 444, 78 P.3d 40 (2003), that recognized Hall's bifurcated review standard can create an absurd situation depending on how the argument was framed. This is because when a defendant challenged a charging document's insufficiency for the first time on appeal, the post-Hall standard applied. But if the defendant altered the argument to be an ineffective-assistance- of-counsel claim in the same situation, the court would be forced under Strickland to hold the alleged deficient performance was prejudicial when failing to move to arrest judgment if there was any defect under the pre-Hall standard. Ferguson, 276 Kan. at 430. The Ferguson court resolved this anomaly by applying the

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State v. Harris common-sense rule to analyzing the prejudicial effect of trial counsel's failure to move to vacate in a collateral attack based on ineffective assistance of counsel. 276 Kan. at 444; see also Swen- son v. State, 284 Kan. 931, Syl. ¶ 4, 169 P.3d 298 (2007) (common-sense rule is used to analyze the prejudice prong in the test for ineffective assistance of counsel related to failure to file a motion to dismiss or vacate the judgment when alleging a defective complaint). In his petition for review, Harris claims the panel erred by applying Dunn. And to that extent we agree because the issue for appellate review is not the charging document's sufficiency but whether his opportunity for a hearing was squandered under what would have been the pre-Hall standard. We also note Dunn did not revisit or overrule Ferguson's modified prejudice prong analysis. This means Ferguson remains the correct analytical framework in Harris' case. The Sixth Amendment to the United States Constitution recognizes an accused's right to the assistance of counsel because it envisions counsel playing a role critical to the adversarial system's ability to produce just outcomes. The accused is entitled to be as- sisted by counsel who plays the role necessary to ensure the trial is fair. Strickland, 466 U.S. at 685. The prejudice prong "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Emphasis added.) 466 U.S. at 687. Meier testified at the Van Cleave hearing that he was not confused about the offense charged nor about the State's theory on the aggravated kidnapping. He said he clearly understood aggravated robbery or robbery was the aggravated kidnapping's underlying offense. He also stated he could adequately prepare a defense to the charge, which was a general denial. He testified he would not have done anything differently had the complaint contained the words "aggravated robbery" as opposed to "any crime." Following Ferguson, our caselaw dictates the common-sense rule applies to determine whether Harris suffered prejudice on his ineffective assistance of counsel claim. And with that, the record shows he suffered no prejudice. Harris was not deprived of a fair trial.

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State v. Harris

Affirmed.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 112,883 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

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State v. Chavez-Majors

No. 115,286

STATE OF KANSAS, Appellee, v. KYLE ALAN CHAVEZ-MAJORS, Appellant.

___

SYLLABUS BY THE COURT

1. MOTOR VEHICLES—Driving while Legally Impaired—Probable Cause Factors. Unsafe driving and the odor of alcohol can each suggest a person was driving while legally impaired and contribute to a finding of probable cause.

2. SEARCH AND SEIZURE—Warrantless Blood Draw—Three-Prong Test for Determination if Meets Exception to Warrant Requirement. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) established a three-prong test for fitting a warrantless blood draw into the probable cause plus exigent circumstances exception to the warrant requirement: (1) there must be exigent circumstances that justify the taking of the blood sample; (2) there must be probable cause to believe the defendant has been driving while legally impaired; and (3) the procedure used to extract blood must be reasonable.

3. SAME—Warrantless Blood Draw—Exigency Not Established by Natural Dissipation of Alcohol in Blood. The natural dissipation of alcohol in the blood does not establish exigency per se.

Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 543, 402 P.3d 1168 (2017). Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed December 20, 2019. Judgment of the Court of Appeals affirming the district court on the issue subject to review is affirmed in part and the case is remanded to the district court with directions.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Brett D. Sweeney, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Kyle Chavez-Majors was convicted of aggravated battery while driving under the influence of alcohol after the district court denied his motion to suppress evidence obtained from a warrantless blood draw. The Court of Appeals reversed the conviction based on a violation of the right to jury trial but affirmed

VOL. 310 SUPREME COURT OF KANSAS 1049

State v. Chavez-Majors the district court's denial of the motion to suppress. Chavez-Ma- jors challenges the portion of the panel's decision affirming the denial of the motion to suppress.

FACTS

On May 24, 2014, at approximately 9:22 p.m., Wildlife and Parks Ranger Tyler Burt received a call regarding a motorcycle accident in a parking lot in El Dorado State Park. When Burt arrived, there were 15 to 20 people and numerous alcoholic contain- ers throughout the parking lot. Burt observed a motorcycle on its side and two people who appeared to be injured. Burt first checked on Jenilee Christy. She was sitting up and talking and had lacera- tions on one of her legs. After asking Christy if she was okay, Burt turned his attention to the other injured individual—Chavez-Ma- jors—who was lying on the ground. Chavez-Majors was nonre- sponsive and appeared to have suffered a head wound, resulting in blood-soaked hair. Burt leaned close to Chavez-Majors and while checking for signs of breathing smelled a strong odor of alcohol on his breath. After confirming that Chavez-Majors was breathing, Burt remained with him until emergency medical services (EMS) personnel arrived. When EMS arrived, Burt had them attend to Chavez-Majors and went to speak with Isaiah McElhone, who had witnessed the accident. McElhone told Officer Burt that Chavez-Majors had been driving the motorcycle at a high rate of speed down a road that led into the parking lot when he lost control, fell off the motorcycle, which then slid into Christy in the parking lot. At some point after EMS arrived, Burt read an implied consent form to the unconscious Chavez-Majors and then directed EMS personnel to draw Chavez-Majors' blood. The blood sample eventually revealed that Chavez-Majors had a blood alcohol level of .14. Chavez-Majors was charged with aggravated battery while driving under the influence; driving while license canceled, suspended, or revoked; no proof of liability insurance; and illegal registration.

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State v. Chavez-Majors

Chavez-Majors moved to suppress the results of the blood test, arguing that the blood draw was an unreasonable search under the Fourth Amendment to the United States Constitution. At a hearing on the motion, Burt testified about the events surrounding the blood draw. He explained that he was familiar with the parking lot where the accident occurred and that it was typically referred to as the "party cove." Burt testified that "a lot of people go there and party and consume alcohol and just . . . enjoy the lake." Burt described the parking lot as 150 feet wide by 50 feet deep. He explained that one paved road with a speed limit of 45 leads up to the parking lot, curves to the right, and then dead-ends in the parking lot. Burt estimated that it took him 10 minutes to arrive on the scene after receiving a call about the accident. There were no other officers at the scene when he arrived. Based on skid marks that he observed on the road, Burt stated that it appeared the motorcycle had been traveling at a high rate of speed when it ran off of the road to the left, traveled a short distance, and then fell on its side and skidded across the parking lot. Burt testified that he believed Chavez-Ma- jors had serious head injuries and was in critical condition. At some point after EMS arrived, Burt learned that Chavez-Majors was going to be transported by ambulance to a hospital in Wichita. He understood that EMS personnel considered Chavez-Majors' injuries too serious for the local hospital. Burt testified that he requested EMS perform a blood draw because he believed Chavez-Majors had been driving under the influence of alcohol. He based this belief on the accident, Chavez- Majors' high rate of speed, and the strong odor of alcohol coming from Chavez-Majors' breath. On cross-examination, Officer Burt admitted that it is possible for someone with a strong odor of alcohol on his or her breath to be only minimally intoxicated and for someone with very little odor of alcohol on his or her breath to be heavily intoxicated. He also confirmed that many traffic accidents do not involve alcohol. On direct examination, the State asked Burt if he had access to "iPads or any other electronic device" that he could have used to "contact a local judge to obtain a warrant with." Burt said he did not. He also confirmed that he did not have a DUI template or

VOL. 310 SUPREME COURT OF KANSAS 1051

State v. Chavez-Majors something that was "already worked up for a situation like this." Although Burt had been a park ranger for five years, he agreed that neither he nor anyone else in his department had "done anything like that before." Burt estimated that, given all of his other responsibilities that night, it would have taken him an hour and a half to two hours to "write up a warrant." Burt further testified that he was the only law enforcement officer present on the scene until about 15 to 20 minutes after he had arrived. The other officers arrived after Burt had requested that EMS draw Chavez-Majors' blood. On that evening, there had been only one other officer pa- trolling the park, and he had been attending to a different call at the time Burt responded to the accident. Burt confirmed that, "[a]s a park ranger," he was "a law enforcement officer in every other way" and had completed "the training program at the academy" where he was taught how to obtain warrants. Burt testified that, although his office did not routinely obtain warrants, it would have been possible to seek assistance from law enforcement officers at the El Dorado Police De- partment in doing so. Burt acknowledged that he made no attempt to seek assistance in obtaining a warrant, did not contact a supervisor about obtaining a warrant, and did not consider the possibility that he might have needed a warrant. Burt stated that he had no reason for not obtaining a warrant; he just did not do so. On redirect, Burt testified that he understood he had to draw blood from Chavez-Majors within three hours of the accident to obtain "valid" results. He went on to state that it would have been possible to get a warrant within three hours of the accident but he could not be "100 percent sure" he would have been able do to so. McElhone also testified at the hearing. He stated that he had been with Christy and two of their friends in the parking lot on the evening of the accident. He did not know Chavez-Majors but had seen him in the parking lot that evening and observed him pick up a beer a few times. McElhone testified that he watched Chavez- Majors drive his motorcycle at a high rate of speed—25 to 30 miles per hour—down the road towards the parking lot and asked someone if Chavez-Majors should have been driving the motorcycle. McElhone was concerned he was intoxicated based on how fast Chavez-Majors was driving. Whoever McElhone questioned

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State v. Chavez-Majors replied that Chavez-Majors was "fine." When Chavez-Majors got close to the parking lot, the motorcycle fell to its side, Chavez- Majors fell off of it, and the motorcycle slid through the parking lot. The motorcycle slid past McElhone and into Christy, pinning her underneath a truck. McElhone testified that he believed Chavez-Majors lost control of the motorcycle because he was driving it too fast. He further testified that he had not considered Chavez-Majors too intoxicated to be driving the motorcycle. The district court denied the motion to suppress after concluding that the warrantless search was reasonable under the probable cause plus exigent circumstances exception to the warrant requirement. The State agreed to dismiss all charges except aggravated battery while driving under the influence in exchange for Chavez- Majors' agreement to proceed to a bench trial on stipulated facts. At the bench trial, the court acknowledged this agreement from the bench. The court never informed Chavez-Majors of his right to a jury trial and Chavez-Majors did not explicitly waive that right. Nonetheless, the trial continued. The court confirmed that Chavez-Majors agreed with the stipulated facts and then found Chavez-Majors guilty of aggravated battery while driving under the influence. The court sentenced Chavez-Majors to 57 months in prison. Chavez-Majors appealed. He argued that his conviction should be reversed because he did not waive his right to a jury trial and because the district court erred in denying his motion to suppress. The Court of Appeals agreed that Chavez-Majors had not knowingly and voluntarily waived his right to a jury trial and reversed and remanded for a new trial or an effective waiver. State v. Chavez-Majors, 54 Kan. App. 2d 543, 552, 402 P.3d 1168 (2017). The Court of Appeals affirmed the district court's decision denying the motion to suppress. Chavez-Majors, 54 Kan. App. 2d at 570. Chavez-Majors petitioned for this court's review of the portion of the Court of Appeals decision affirming the district court's denial of the motion to suppress. The State cross-petitioned for review of the portion of the Court of Appeals opinion holding that Chavez-Majors did not waive his right to jury trial and reversing

VOL. 310 SUPREME COURT OF KANSAS 1053

State v. Chavez-Majors and remanding the case. We granted Chavez-Majors' petition for review and denied the State's cross-petition for review.

ANALYSIS

Chavez-Majors argues that the warrantless blood draw violated his right to be free from unreasonable searches under the United States and Kansas Constitutions and, consequently, the Court of Appeals erred when it affirmed the district court's denial of his motion to suppress the results of that blood draw. When considering a district court's ruling on a motion to suppress evidence, we review the district court's factual findings to determine whether they are supported by substantial competent evidence. We review the ultimate legal conclusions based on those findings de novo. State v. Palacio, 309 Kan. 1075, 1081, 442 P.3d 466 (2019) (citing State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 [2016]). Chavez-Majors contests only the court's legal conclusions. Under the Fourth Amendment, people have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. This provision, applicable to the States through the Fourteenth Amend- ment, prohibits federal and state actors from performing unreasonable searches or seizures. Mapp v. Ohio, 367 U.S. 643, 647, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (Fourth Amendment limits action of federal officials and applies to states via Fourteenth Amendment). The Kansas Constitution Bill of Rights also includes a prohibition against unreasonable searches and seizures. Section 15 provides that "[t]he right of people to be secure in their persons and property against unreasonable searches and seizures, shall be in- violate . . . ." We have interpreted this section to offer protections identical to the Fourth Amendment. State v. Howard, 305 Kan. 984, 989, 389 P.3d 1280 (2017). A search or seizure that is performed without a warrant is always unreasonable unless it fits within one of the following exceptions: "'consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency

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State v. Chavez-Majors doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses.'" Howard, 305 Kan. at 989 (quoting State v. Richard, 300 Kan. 715, 726-27, 333 P.3d 179 [2014]). If the warrantless search or seizure does not fit within one of these exceptions, any evidence it reveals is inadmissible and must be suppressed. Howard, 305 Kan. at 989. It is the State's burden to show that a challenged search was reasonable. Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970); State v. Estrada-Vital, 302 Kan. 549, 556, 356 P.3d 1058 (2015); K.S.A. 22-3216. A blood draw is a "search" under the Fourth Amendment. Missouri v. McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). In Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the United States Supreme Court held that a warrantless blood draw was reasonable under the exigent circumstances plus probable cause exception. There, a police officer smelled liquor on a driver's breath at the scene of an accident and observed other signs of drunkenness. The blood draw that the officer ordered at the hospital was reasonable in that case because "[t]he officer . . . might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence.'" Schmerber, 384 U.S. at 770 (quoting Pres- ton v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 11 L. Ed. 2d 777 [1964]). The Court also found that the testing procedures had been reasonable. Courts, including this one, have interpreted Schmerber to establish a three-prong test for considering whether a warrantless blood draw fit within the probable cause plus exigent circumstances exception to the warrant requirement: (1) there must be exigent circumstances which justify the taking of the blood sample; (2) there must be probable cause to believe the defendant had been driving while legally impaired; and (3) the procedure used to extract blood must be reasonable. State v. Murry, 271 Kan. 223, 233, 21 P.3d 528 (2001). Although the officer in Schmerber had arrested the driver of the car before performing the search, courts have concluded that Schmerber does not require arrest as a fourth prong. See Murry, 271 Kan. at 233 (citing other jurisdictions to

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State v. Chavez-Majors support conclusion that Schmerber does not require arrest prior to taking blood sample). Similarly, arrest alone does not make a blood draw reasonable. Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2184, 195 L. Ed. 2d 560 (2016) (search incident to arrest exception does not allow for warrantless blood draw). Here, the district court concluded that the warrantless blood draw performed on Chavez-Majors was reasonable because it met this three-prong test. The Court of Appeals agreed. Chavez-Ma- jors, 54 Kan. App. 2d at 569. Chavez-Majors does not contest the court's factual findings and he concedes that the procedure was reasonable, but he argues that both courts made a legal error when they concluded that probable cause and exigent circumstances existed. We address each in of those in turn.

Probable Cause

To satisfy this element, the State had to establish that Burt had probable cause to believe that Chavez-Majors had been driving his vehicle while the alcohol concentration in his blood was .08 or more. K.S.A. 2013 Supp. 8-1567.

"'Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

"'When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt.'" State v. Regelman, 309 Kan. 52, 61, 430 P.3d 946 (2018) (quoting State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 [2004]).

The district court made the following findings regarding probable cause:

"In this instance the officer would have had available, based on the evidence, the following information: that the—the defendant in this case was operating his motorcycle at a high rate of speed for a parking lot, 25 to 30 miles per hour, which at least suggests to the Court impaired judgment; No. 2, that the defendant's driving behavior resulted in a motorcycle hitting a pedestrian which resulted in serious injury to such pedestrian and to the defendant. The officer would have also had the information that he had detected the strong smell consistent with

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State v. Chavez-Majors alcoholic beverage on the breath of the defendant. And the officer also would have known that the particular place where this incident took place was known as a party cove with based on his experience which involved alcohol drinking parties and was busy with alcohol partiers in this very area on that very day."

Based on these findings, the district court concluded that the officer had probable cause to support a reasonable belief that Chavez-Majors had been driving while intoxicated beyond the legal limit. The Court of Appeals agreed with this conclusion. Chavez- Majors, 54 Kan. App. 2d at 561-62. It highlighted the strong odor of alcohol on Chavez-Majors' breath, that the location where Of- ficer Burt had been was well-known for groups of people drinking alcohol and "partying," that there were numerous people and con- tainers of alcohol in the area when the officer arrived, and that Chavez-Majors had been driving at a high rate of speed into a parking lot before losing control of his vehicle. Chavez-Majors, 54 Kan. App. 2d at 561. Chavez-Majors argues that the Court of Appeals placed too much emphasis on his high rate of speed as he entered the parking lot because "traffic infractions and poor decision-making do not necessarily mean intoxication." Chavez-Majors acknowledges the odor of alcohol on his breath but attempts to diminish its probative value by pointing out that Officer Burt testified that an odor of alcohol does not conclusively suggest a person is intoxicated. Chavez-Majors also emphasizes McElhone's testimony that he did not think that Chavez-Majors was too intoxicated to be operating a vehicle. Chavez-Majors' attempt to discredit dangerous driving as a sign of intoxication is unconvincing. As the Court of Appeals noted, we have explained that "'unsafe driving can suggest intoxication.'" Chavez-Majors, 54 Kan. App. 2d at 561 (quoting City of Wichita v. Molitor, 301 Kan. 251, 268, 341 P.3d 1275 [2015]). Chavez-Majors drove his motorcycle at a high rate of speed into a parking lot where cars were parked and people were standing. This certainly shows significantly impaired judgment and supported a reasonable belief that Chavez-Majors was driving while legally impaired.

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State v. Chavez-Majors

Chavez-Majors' minimization of the strong odor of alcohol on his breath is equally unmoving. Our caselaw makes it clear that the odor of alcohol suggests intoxication. See, e.g., State v. John- son, 297 Kan. 210, 222, 301 P.3d 287 (2013) (smell of alcohol contributed to probable cause finding); Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 518, 242 P.3d 1179 (2010) (same); City of Dodge City v. Hadley, 262 Kan. 234, 246, 936 P.2d 1347 (1997) (same). Although Chavez-Majors is correct—a person can smell like alcohol without being too intoxicated to legally drive, we have never held that a factor must definitively show intoxication to support a finding of probable cause. Finally, Chavez-Majors' insistence that McElhone's testimony undermines any suspicion of intoxication is without merit. This testimony has little relevance to the probable cause analysis. Whether the officer had probable cause depends on "'the facts and circumstances within the arresting officers' knowledge.'" Ramirez, 278 Kan. at 406. Nothing in the record suggests that McElhone told Burt that he did not believe Chavez-Majors was too intoxicated to be operating the motorcycle. Combined, the factors in this case supported probable cause. Chavez-Majors was driving at a high rate of speed around a curve and into a parking lot that he knew held parked cars and where people were congregated. When Burt arrived on the scene shortly thereafter, he smelled a strong odor of alcohol on Chavez-Majors' breath. These factors justified a reasonable belief that Chavez-Ma- jors was driving while legally impaired. See United States v. Berry, 866 F.2d 887, 891 (6th Cir. 1989) (officer had probable cause to believe defendant had been driving while intoxicated when officer "was aware that the suspect was involved in a serious and inexplicable single car accident" and Berry's breath smelled of alcohol); State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978) (probable cause when defendant caused fatal traffic accident and smelled of alcohol); People v. LeRow, 70 A.D.3d 66, 71, 889 N.Y.S.2d 813 (2009) (officer had probable cause when defendant had been driving motorcycle at a high right of speed before cross- ing center line, entering a yard, and hitting a large rock and defendant smelled like alcohol); State v. Hollingsworth, 77 N.C.

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State v. Chavez-Majors

App. 36, 44, 334 S.E.2d 463 (1985) (probable cause when defendant's car smelled of alcohol and defendant caused traffic accident by miscalculating distance between his car and another and was unable to prevent high-speed cross over median). We affirm the district court's and the Court of Appeals' conclusions regarding probable cause.

Exigent Circumstances

Although we have concluded that probable cause existed, the warrantless blood draw survives Chavez-Majors' challenge only if exigent circumstances also were present. The leading case on exigent circumstances is Schmerber v. California, 384 U.S. 757. There, the United States Supreme Court described exigent circumstances as those which would cause an officer to "reasonably [] believe that [the officer] was confronted with an emergency, in which the delay necessary to obtain a warrant . . . threatened 'the destruction of evidence.'" Schmerber, 384 U.S. at 770 (quoting Preston, 376 U.S. at 367). Following Schmerber, in Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct. 1552, 185 L. Ed 2d 696 (2013), the Court held that "the natural dissipation of alcohol in the blood" does not establish exigency per se. The Court confirmed this holding three years later in Birch- field. 136 S. Ct. at 2174 (acknowledging that "the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample"). Relying on these cases, the district court here found that exigent circumstances existed in this case because of Chavez-Majors' "significant[] injur[y] . . . , evidence that his head was bleeding profusely at the time . . . , [the] apparent need for immediate medical care on an emergency basis and the likely need for evacuation of at least two individuals . . . , [and], though not determinative in and of itself, the limited resources that were immediately available to the officer on this occasion . . . ." The Court of Appeals affirmed this decision, based on the following facts:

"the metabolization of alcohol in the defendant's bloodstream coupled with the exigent factors that the officer arrived at the accident scene 10 minutes after being dispatched; upon arrival he was the only officer available to attend to the seriously injured defendant and another injured person for 15 to 20 minutes while

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State v. Chavez-Majors awaiting the arrival of emergency medical personnel; emergency medical personnel determined it was necessary to transport the defendant by ambulance a considerable distance to a hospital in another county for medical treatment; the officer conducted an investigation of the accident scene; and the officer testified that it would have taken 'a significant amount of time,' estimated at one and a half to two hours to prepare a search warrant . . . ." Chavez-Majors, 54 Kan. App. 2d at 569.

After the Court of Appeals ruled and Chavez-Majors submitted his petition for review to this court, the United States Supreme Court issued a decision regarding a warrantless blood draw from an unconscious driver. See Mitchell v. Wisconsin, 588 U.S. __, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019). In Mitchell, a plurality of the Supreme Court held:

"When police have probable cause to believe a person has committed a drunk- driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment." Mitchell, 139 S. Ct. at 2539.

The plurality then addressed those situations when the warrantless blood draw may not be reasonable, noting:

"We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties." Mitchell, 139 S. Ct. at 2539.

Because Mitchell had not had "a chance to attempt to make that showing," the Court remanded the case for that purpose. Mitchell, 139 S. Ct. at 2539. Like Mitchell, Chavez-Majors has not had a chance to fully litigate his claim under the change in law created by Mitchell. And neither of the lower courts had the advantage of Mitchell when making their rulings. Consequently, we will not review those decisions. Instead, we remand this case to the district court for an evidentiary hearing and a ruling from the district court on exigency in light of Mitchell. We affirm the Court of Appeals decision regarding probable cause and remand the case to the district court for a suppression hearing to consider, under the change in law created by Mitchell,

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State v. Chavez-Majors whether exigent circumstances supported the warrantless blood draw, and for any other necessary proceedings under this court's and the Court of Appeals' ruling.

Affirmed in part and remanded with directions.

PATRICK D. MCANANY, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.115,286 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.